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Olivo v. Exxon Mobil Corp.5/5/2005
at exposure to asbestos created a threat of injury as early at 1937. Moreover, it was generally known as early as 1916, that to avoid contaminating employees' homes, employees laboring around industrial chemicals should be provided with changing rooms, washing facilities, and encouraged not to wear work clothing home.
"'Once the foreseeability of an injured party is established, . . . considerations of fairness and policy govern whether the imposition of a duty is warranted.'" Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 573 (1996) (quoting Carter Lincoln-Mercury, Inc. v. Emar Group, Inc., 135 N.J. 182, 194-95 (1994)). This requires a weighing and balancing of "'the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.'" Carvalo, supra, 143 N.J. at 573 (quoting Hopkins, supra, 132 N.J. at 439). When we weigh and balance these factors, we believe Exxon Mobil owed a duty to plaintiff's decedent.
The opportunity and ability to exercise care is key to assessing whether imposition of a duty is fair and just. Hopkins, supra, 132 N.J. at 429. Exxon Mobil was in the best position to prevent the harm. Asbestos-related diseases are very serious and often deadly. Exxon Mobil could have easily informed plaintiff of the risks to his own health and the health of his wife and/or provided changing rooms so as to limit exposure to asbestos. As early as 1916, Exxon Mobil knew about the potential for contaminating a worker 's home with industrial chemicals and the steps to be instituted to cut down on this risk. "When the defendant's actions are 'relatively easily corrected' and the harm sought to be prevented is 'serious,' it is fair to impose a duty." J.S., supra, 155 N.J. at 339-40 (quoting Kelly v. Gwinnell, 96 N.J. 538, 549-50 (1984)).
Exxon Mobil's claim that it owed no duty to decedent because she was not on its premises when she came in contact with the asbestos is not dispositive of the duty question. Landowners can owe a duty to plaintiffs injured off the landowner's premises. Kuzmicz, supra, 147 N.J. at 515. The ultimate question is whether it is fair and just to impose a duty of care on a landowner. Hopkins, supra, 132 N.J. at 435.
Finally, we must consider the public interest in the solution. Hopkins, supra, 132 N.J. at 439. We recognize Exxon Mobil's concern that imposing a duty here potentially exposes it to liability with respect to others who might come in contact with plaintiff. However, we limit our holding to the facts of this case. Plaintiff's decedent predictably came into contact with plaintiff's work clothes. In re New York City Asbestos Litigation, supra, 14 A.D.2d at 121. As such, she falls "within the range of apprehension" that is required to impose a duty of care. Hill v. Yaskin, supra, 75 N.J. at 144. " t is hardly a quantum leap to extend the duty of care owed to employees [to their spouses] who predictably come into routine contact with the employees clothing." In re New York City Asbestos Litigation, supra, 14 A.D.2d at 121.
However, we agree with the following:
On the other hand, extending the duty to others who might foreseeably come into contact with the employee's clothing but whose contact with the employee is unpredictable and generally outside the scope of an employer's knowledge, such as car pool participants, bus drivers, elevator operators, etc., would stretch the concept of duty beyond any reasonable parameters.
[Id. at 121-22.]
Therefore, we limit the duty to plaintiff's decedent. We decline to address other potential plaintiffs that are not before us. We recognize that this is
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