Monday, July 11, 2016

New Jersey expands reach of possible liability in case where the plaintiff was exposed to toxic substance brought home by exposed worker

Back in May I wrote about a few recent cases that have recognized a cause of action on behalf of a spouse for injuries suffered due to exposure to toxic substances brought home by their spouse.  Typically, the cases involve mesothelioma caused by exposure to asbestos.  Go here for that post, which has links to others on the same subject.

As I explained back then, plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability). 

Since this is, obviously, just an argument in support of the element of proximate cause, defendants reply that liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, but courts have avoided it since the plaintiffs so far have been spouses, thus allowing courts to use the proximate cause analysis based on foreseeability while limiting the reach of the possible liability to the immediate family members.  

But, as you would expect, once you open the door...  The New Jersey Supreme Court has just expanded the reach a bit more by recognizing a cause of action for a plaintiff who was not married to the person exposed directly.  According to TortsProf blog the case involved a woman was not married to the worker whose clothes carried the asbestos at the time the exposure began, but who did later become his spouse. 

The important thing is that in reaching its conclusion, the court stated the spousal relationship was not the key, but rather that the most important factor, among several, to consider is foreseeability.   In the NJ case, although the plaintiff was not a spouse, she had a close personal relationship with the exposed worker and was exposed because she spent time with him at his residence during the time before their marriage. 

That makes complete logical sense; but the moment we base the analysis squarely on foreseeability, the more difficult it becomes to distinguish the case from the claim of the regular at the bar.

As Andrews famously said in Palsgraf (I am paraphrasing here), we may not like where we draw the line, but a line we must draw...

Go here for more information.

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