Olivo v. Exxon Mobil Corp.5/5/2005
t looked to decisions in other jurisdictions that held manufacturers and suppliers of asbestos products liable to injured third parties. Id. at 118-19. Finally, in concluding that the defendant had a duty to the employee's wife, the court stated:
Although the Port Authority was not a manufacturer or supplier of asbestos products, but rather permitted their use at its work sites, the core of the analysis is the same in determining the scope of the duty owed to third parties--did the defendants know or have reason to know that their use or sale of a product posed a reasonably foreseeable risk of harm to the injured plaintiffs.
[Id. at 119 (citations omitted).]
We agree with the New York Appellate Division, but note that this analysis is sound under principles of New Jersey law notwithstanding the New York decision.
In New Jersey, manufacturers of hazardous products owe a duty of care to both users or consumers and third parties. We held that the trailer manufacturer of a tractor trailer, which was not equipped with a back-up alarm, was liable to a bystander who was killed when run over by the trailer. Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 394-95, 402-03 (App. Div.) (citing Monsanto Co. v. Alden Leeds, Inc., 130 N.J. Super. 245, 263 (Law Div. 1974); Lamendola v. Mizell, 115 N.J. Super. 514, 524 (Law Div. 1971)), certif. denied, 126 N.J. 390 (1991).
In Monsanto, supra, the Law Division applied the "'foreseeable plaintiff'" test, and held that the landlord of a tenant who purchased dry organic chloride was permitted to recover from the manufacturer when the building was destroyed in a fire ignited by the product. 130 N.J. Super. at 264. Additionally, in Lamendola, supra, the Law Division permitted a driver struck by a car with a faulty accelerator pedal to recover from the manufacturer. 115 N.J. Super. at 518. The court said: " is, therefore, well within the realm of foreseeability that a pedestrian or other traveller lawfully upon the road will be insured due to a defect in a vehicle." Id. at 524.
Foreseeability is a foundational element in determining whether a duty exists. J.S. v. R.T.H., 155 N.J. 330, 337 (1998) (citing Williamson v. Waldman, 150 N.J. 232, 239 (1997)).
In determining whether a duty is to be imposed, courts must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.
[J.S., supra, 155 N.J. at 337 (citing Hopkins, supra, 132 N.J. at 439).]
Exxon Mobil concedes, and we agree, that it owed a duty to warn of the risks associated with exposure to asbestos and provide reasonable safeguards against its dangers of care to plaintiff, its employee.
Foreseeability as it impacts duty determinations refers to "the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care."
[Clohesy v. Food Circus Supermarket, Inc., 149 N.J. 496, 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)).]
Here, the record adequately supports Exxon Mobil's knowledge of the risk of injury to someone like plaintiff's decedent. Defendant knew th
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