N.J. High Court: Landowner Can Be Held Liable for Death of Worker's Spouse

A property owner can be held liable if the spouse of a worker on its property becomes ill from asbestos-contaminated clothing brought home by the worker, the New Jersey Supreme Court ruled April 24.

The court, ruling on a wrongful death lawsuit filed by retired pipe welder Anthony Olivo, concluded that Exxon Mobil which owns a refinery in Paulsboro, N.J., where Olivo performed work over the years "owed a duty to workers on its premises for the foreseeable risk of exposure" to asbestos. By the same token, the court determined that Exxon Mobil also "owed a duty to spouses handling the workers' unprotected clothing based on the foreseeable risk of exposure from the asbestos borne home on contaminated clothing."

Olivo's Wife Died of Mesothelioma

Olivo sued Exxon Mobil and several dozen other defendants including manufacturers and suppliers of asbestos products alleging that his wife, Eleanor, contracted mesothelioma from her daily contact with Anthony's asbestos-laden work clothes, which she washed every night. Eleanor was diagnosed with mesothelioma in 2000 and died in 2001.

All of the companies named in the lawsuit settled except for Exxon Mobil, which contended that it did not owe a duty of care to Eleanor, since she had never set foot on the company's property.

A New Jersey trial court dismissed the case, but the state's Appellate Division reversed the lower court's ruling. The Appellate Division judges noted that the key to determining whether Exxon Mobil owed Eleanor Olivo a duty of care boiled down to whether Exxon Mobil could have foreseen that she could become ill from touching her husband's asbestos-contaminated clothes; the judges concluded that such a risk was foreseeable to Exxon Mobil.

The appellate judges noted that Exxon Mobil was "in the best position to prevent the harm" and easily could have warned workers such as Anthony Olivo about the hazards asbestos presented to him and his wife. The judges added that Exxon Mobil could have provided changing rooms to reduce the risk of asbestos exposure.

Court: Exxon Mobil Was Aware of Asbestos Hazards

Justice Jaynee LaVecchia, who authored the April 24 opinion on behalf of the unanimous Supreme Court, also noted that foreseeability is an important issue in determining whether one party owes another a duty of care as well as in deciding whether breach of such a duty of care is the cause of someone's injury.

Applying general principles of tort liability set forth in previous New Jersey case law, LaVecchia concluded that "the risk of injury to someone like Eleanor Olivo is one that should have been foreseeable to Exxon Mobil."

"Exxon Mobil was aware by 1937 that exposure ... to asbestos dust or raw asbestos was associated with asbestosis," LaVecchia wrote. "Moreover, a report prepared in 1937 specifically for the petroleum industry detailed the hazards associated with 'occupational dust,' including asbestos particles, which was prevalent at petroleum plants.

"As early as 1916, industrial hygiene texts recommended that plant owners should provide workers with the opportunity to change in and out of work clothes to avoid bringing contaminants home on their clothes."

Evidence presented to the trial court does not indicate that Exxon Mobil took those types of precautions to protect workers at its Paulsboro plant from the hazards of asbestos, LaVecchia points out.

Not an Open and Shut Case

While the Supreme Court's ruling is a victory for Anthony Olivo, it does not guarantee that Exxon Mobil will be found negligent in the death of Olivo's wife.

Exxon Mobil argued that it did not owe a duty of care to Anthony Olivo because Olivo was an employee of an independent contractor "hired to perform work that required the contractor to address the incidental hazard of asbestos contact," LaVecchia wrote.

Consequently, Exxon Mobil argued that it did not owe Eleanor Olivo a duty of care either.

Justice LaVecchia points to previous New Jersey case law that states that landowners have an obligation to make their premises safe, even for independent contractors. A recent New Jersey Supreme Court opinion (Muhammad v. N.J. Transit, 2003) held that a landowner can fulfill that obligation to an independent contractor by warning the contractor of dangerous conditions.

However, several past court opinions conclude that a landowner is not responsible for protecting an independent contractor from workplace hazards when the hazards are created by or incidental to the work being performed by the contractor.

The exception only applies, LaVecchia notes, when the property owner does not have control over the "'means and methods of the execution of the project.'"

Some Questions Need to be Answered

The evidence presented in the lawsuit does not indicate whether Exxon Mobil had that kind of control over Olivo's work or that of his contractor. Other questions important to determining Exxon Mobil's liability also remain, LaVecchia says.

"Issues of fact remain as to whether asbestos exposure was a known risk incidental to the specific work Anthony was hired to perform at the Exxon Mobil site," LaVecchia explains. "Questions persist concerning the scope of the work Anthony was hired to perform, the scope of work that he actually performed, particularly with respect to the handling of asbestos-containing products, and the extent of Exxon Mobil's supervision and control over the work."

There also is insufficient evidence to determine whether Exxon Mobil provided adequate warning to its contractors about the presence of asbestos at the refinery, LaVecchia adds.

Consequently, the Supreme Court remanded the case to a lower court in order to answer those questions, which will determine whether Exxon Mobil owed Anthony Olivo and, by extension, his wife a duty of care.

Hide comments

Comments

  • Allowed HTML tags: <em> <strong> <blockquote> <br> <p>

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.
Publish