On Wednesday, a unanimous New Jersey Supreme Court exposed employers to open-ended liability when employees carry toxic substances home from the workplace.
The court discarded the limit that had been set ten years ago, when it first permitted claims based on exposure to toxic substances brought home from work on employees’ clothing. At the time, the court dismissed concerns that expanding the law to cover these claims would lead to open-ended liability:
“Although [the defendant fears] limitless exposure to liability based on a theory of foreseeability built on contact with [the plaintiff’s] asbestos-contaminated clothing, such fears are overstated. The duty we recognize in these circumstances is focused on the particularized foreseeability of harm to plaintiff’s wife.”
Today, however, the court has abandoned its previous assurances. Writing for the full court, Justice LaVecchia said, “We cannot predict the direction in which the common law will evolve. …the duty of care… may extend, in appropriate circumstances, to a plaintiff who is not a spouse.”
“Businesses, and businesses dealing with toxic substances in particular, need more certainty than this case provides,” said NJCJI president Marcus Rayner. “A business can’t plan for the future, or even do something as simple as buy adequate insurance if they have no way of knowing what sort of liability they might be facing.”
Plaintiffs should also be concerned. As the body of potential plaintiffs grows to include those with only tangential relationships to defendants, recoveries are necessarily diluted for individuals with more direct exposure.