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Olivo v. Exxon Mobil Corp.5/5/2005
this suit and subsequently Exxon Mobil moved for summary judgment. The judge granted the motion. He said, in part, that "imposing an additional duty on a landowner for asbestos-related injuries that occurred off the premises would not be fair or just."
On appeal, plaintiff contends 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 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. We agree with plaintiff.
In a negligence case, plaintiff must show a duty of care, a breach of that duty, and that the breach proximately caused the harm. Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000). "In reviewing the grant of summary judgment to the defendant, . . . the scope of the duty owed by the defendant a legal question for the court to decide, based on the totality of the circumstances." Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 18 (App. Div. 2001).
Under traditional common law premises liability, a landowner's duty of care is dependant upon the visitor's status as a trespasser, licensee/social guest, or business invitee. Sussman v. Mermer, 373 N.J. Super. 501, 504 (App. Div. 2004) (citing Parks v. Rogers, 176 N.J. 491, 497 (2003)). In New Jersey, however, the common law of premises liability "has undergone transition toward 'a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others.'" Sussman, supra, 373 N.J. Super. at 504 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 435 (1993)). The court must consider all of the circumstances and determine whether it is fair and just to impose a duty of care on a landowner. Sussman, supra, 373 N.J. Super. at 504 (citing Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509 (1996)). This is the standard, regardless of whether the injury occurs on or off the landowner's premises. Kuzmicz v. Ivy Hill Apartments, Inc. 147 N.J. 510, 515 (1997).
In assessing whether imposition of such 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.
[Sussman, supra, 373 N.J. Super. at 504 (citing Hopkins, supra, 132 N.J. at 439.)]
Our courts have not addressed whether under premises liability landowners have a duty to a spouse of an asbestos worker. However, a recent decision from the New York Supreme Court, Appellate Division, with facts similar to those here, is instructive. In New York, a husband and wife filed a negligence action against the husband's employer, the Port Authority of New York and New Jersey, for the wife's injuries caused by exposure to asbestos while laundering his work clothes. In re New York City Asbestos Litigation, 14 A.D.3d 112, 113-14 (N.Y. App. Div. 2004), leave to appeal granted ___ N.Y.S.2d ___ (N.Y. App. Div. 2005). First, the court looked to other decisions in New York, finding that landowner-employers owe a duty of care to off premises plaintiffs. Id. at 117-18 (citing Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y. 1994) (finding that Goodyear owed a duty of care under negligence and strict liability theories to employee's wife suffering from bladder cancer caused by exposure to toxic chemical brought home on husband's work clothes)). Then the cour
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