Defense Digest

New Jersey Asbestos Defense Update: Recent Case Law & Jury Verdicts
Landowners Beware! Landowner exposure to liability for the death of the wife of a laborer exposed to asbestos on its premises, despite the fact that the wife was not injured on the premises.

Until recently, New Jersey courts had not addressed whether, under premises liability, landowners have a duty to a spouse of an asbestos worker. However, in Olivo v. Exxon Mobil Corp., 377 N.J. Super. 286 (App. Div. 2005), the New Jersey Appellate Division held that landowner Exxon Mobil owed a duty to the plaintiff’s decedent wife for exposure to asbestos that ultimately resulted in her death.

From 1947 until his retirement in 1984, Anthony Olivo worked as a welder/steamfitter at numerous sites throughout New Jersey, employed by some 50 outside contractors. In particular, he worked on and off at the Exxon Mobil Oil refinery in Paulsboro, New Jersey for a total of approximately four years. While at the Exxon Mobil Oil refinery, the plaintiff worked with and around asbestos products on a daily basis, including pipe covering and asbestos mud. When the plaintiff returned home from work each day, he would go directly to the basement, where the washing machine was kept, and change out of his asbestos covered clothes. On a daily basis, the decedent would then place the work clothes in the washing machine and launder them for her husband.

In 1989, the plaintiff was diagnosed with non-malignant asbestos-related disease. In March of 2000, the decedent was diagnosed with malignant mesothelioma. She died of the disease fourteen months later. The plaintiff was never told of the hazards of asbestos dust until his diagnosis. Furthermore, Exxon Mobil did not provide showers, uniforms, or changing rooms at its facility, although it was generally known, as early as 1916, that certain safety precautions should be established at worksites to prevent contaminating employees’ homes with toxic substances.

The Law Division granted summary judgment in favor of Exxon Mobil, holding that "imposing an additional duty on a landowner for asbestos-related injuries that occurred off the premises would not be fair or just." The plaintiff appealed, contending that: "(1) because manufacturers owe a duty to both workers and members of the workers’ households under products liability, premises owners should owe a duty to both workers and members of the workers’ households under premises liability; (2) Exxon Mobil owed a duty to the decedent because it was foreseeable that she would be harmed; and (3) Exxon Mobil owed a duty to decedent because it was in the best position to prevent the harm." The Appellate Division agreed with the plaintiff.

The Appellate Division indicated that common law premises liability in New Jersey "has undergone transition toward ‘a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others'." The court "must consider all the circumstances and determine whether it is fair and just to impose a duty of care on landowners;" furthermore, this standard applies regardless of whether the injury occurs on or off the landowners’ premises. "In assessing whether imposition of a duty would be fair and just, courts weigh and balance the following four factors: (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise care, and (4) the public interest in the proposed solution." Forseeability is also a foundational element in determining whether a duty exists.

The Appellate Division relied on a recent New York Supreme Court, Appellate Division case with similar facts. The New York court held a landowner liable under negligence principles for the employee’s wife’s injuries caused by exposure to asbestos while laundering her husband’s clothes. (Citing In re New York City Asbestos Litigation, 14 A.D. 3rd 112, 113-14 (N.Y. App. Div. 2005)). The New York court looked to other decisions which held that a landowner-employer owes a duty of care to off premises plaintiffs. The New York court also looked to decisions in other jurisdictions that held manufacturers and suppliers of asbestos products liable to third parties. Finally, the New York court concluded:

Ultimately, the New Jersey Appellate Division felt that Exxon Mobil was in the best position to prevent harm to the decedent. The record reflected that Exxon Mobil had knowledge of the risk of injury to someone like the plaintiff’s decedent. Exxon Mobil knew in 1937 that there was a risk of injury from exposure to asbestos dust. Moreover, it was common knowledge as early as 1916 that to avoid contaminating employees’ homes, employees who worked around industrial chemicals should be provided with changing rooms, washing facilities, and encouraged not to wear their work clothing home. "Exxon Mobil could have easily informed plaintiff of the risks to his own health and the health of his wife and/or provided changing rooms so as to limit exposure to asbestos." The court rejected Exxon Mobil’s argument that it owed no duty to the decedent because she was not on the premises when she came into contact with asbestos. "Landowners can owe a duty to plaintiffs injured off the landowner’s premises."

However, the Appellate Division drew a line as to the landowner’s potential exposure to liability in this respect. The court held that liability was limited to the facts of this case, where the plaintiff’s decedent predictably came into contact with the plaintiff’s work clothes because the plaintiff fell within the range of apprehension that is required to impose a duty of care. "[E]xtending the duty to others who might foreseeably come into contact with the employee’s clothing but whose contact with the employee is unpredictable and generally outside the scope of an employer’s knowledge, such as car pool participants, bus drivers, elevator operators, etc., would stretch the concept of duty beyond any reasonable parameters."

This case clearly expands the potential liability of landowners who permitted the use of asbestos on their premises. However, just how far this holding will stretch is unclear. It seems that the child of someone similar to Olivo, and who is injured from exposure to asbestos from contact with his father, could have a viable claim against a landowner like Exxon Mobil. However, would a dry cleaner injured from exposure to asbestos from cleaning a plaintiff’s clothes be comparable to the decedent in this case or to the bus driver, whom the court felt would not be a predictable plaintiff? Whether or not the Supreme Court will uphold this decision remains to be seen.

Asbestos Jury Verdicts On The Rise: Recent Multi-Million Dollar Jury Verdicts In New Jersey

In September 2005, a Middlesex County jury awarded a railroad worker’s estate $11.43 million in an asbestos suit. Ruggerio Fuccilli spent his career working for Central Railroad of New Jersey, Conrail, and New Jersey Transit. His duties included welding, grinding metal, and fixing brakes, allegedly exposing him to asbestos, sawdust, welding fumes, and silica. In December of 2002, he died of pulmonary fibrosis allegedly related to his asbestos exposure.

After a five-week trial before Judge Anne McCormick and eight hours deliberating, the jury assessed $4.1 million for Fuccilli’s disability, pain and suffering and $15.07 million for his wife, Catherine, and their autistic son, Michael’s loss of companionship, for a total of $19.17 million. However, because Conrail had settled before trial and was found 35 percent liable, and because Fuccilli himself was found 8 percent liable, the award was reduced to $11.43 million. See Michael Both, Heating Repairman Wins $8.4M in Suit Over Asbestos Related Illness, New Jersey Law Journal (August 15, 2005).

In an August 2005 case, a Middlesex jury awarded $8.4 million to a former oil heater serviceman who was diagnosed with malignant mesothelioma after decades of using asbestos containing products.

William Rhodes, now 68 years old, was employed by Suburban Fuel Oil Company for 30 years. During that time, he used asbestos products supplied by the defendant, Universal Supply Group. The jury awarded the plaintiff $3 million for past and current disability and pain and suffering, $4 million for future pain and suffering and disability, and $2 million for loss of consortium, and $1 million for his wife’s loss of consortium. Superior Court Judge Edward Ryan reduced the $10 million jury verdict to $8.4 million. The defendant, Universal Supply Corporation, was found 84 percent liable for the plaintiff’s injuries, while 16 percent of liability was assessed to two other defendants who settled confidentially before trial. See Charles Toutant, Railroad Worker’s Estate, Family Win $11.43 Million in Asbestos Suit, New Jersey Law Journal (Aug. 15, 2005).

These two recent jury verdicts in Middlesex County, where New Jersey asbestos lawsuits are case managed, will surely set a new standard for plaintiff attorneys in New Jersey. We will likely see higher settlement demands from plaintiffs in cases involving mesothelioma, pulmonary fibrosis, and lung cancer. The Rhodes case also sets a new standard for defendant supply companies, whose liability for personal injury resulting from asbestos exposure was previously questionable.

*Kristy, an associate in our Cherry Hill, NJ office, can be reached at (856) 414-6043 or kburns@mdwcg.com.