Olivo v. Owens-Illinois, Inc.

Citation186 N.J. 394,895 A.2d 1143
PartiesAnthony OLIVO, Executor of the Estate of Eleanor Olivo, deceased, and in his own right, Plaintiff-Respondent, v. OWENS-ILLINOIS, INC; Owens-Corning Corp.; GAF Corporation; Garlock, Inc.; Fibreboard Corp.; Armstrong World Industries, Inc.; Turner-Newall, Ltd.; Monsanto; United States Gypsum Co.; Asbestos Claims Management Corp. (f/k/a National Gypsum Co.); Foster Wheeler Corp.; Flintkote Co.; Flexitallic, Inc.; A.P. Green Industries, Inc.; Brand Insulation Co.; ACandS, Inc.; Melrath Gasket, Inc.; Jam Industries, Inc.; Durametallic, Inc.; W.R. Grace Co.; Rapid American Corp.; Crown, Cork & Seal, itself and as successor to Mundet Cork; Raytheon Engineers (formerly United Engineers); U.S. Mineral Products Co.; U.S. Rubber Co.; E.I. Dupont de Nemours and Company, Inc.; Texaco, Inc.; B.F. Goodrich; Shell Chemical Corp. and John Doe Corporations (1-20), Defendants, and Exxon Mobil Corporation, Defendant-Appellant.
Decision Date24 April 2006
CourtUnited States State Supreme Court (New Jersey)

Matthew M. Shors, Washington, DC, a member of the District of Columbia bar, argued the cause for appellant (Sedgwick, Detert, Moran & Arnold, attorneys; Michael A. Tanenbaum, of counsel; Mr. Tanenbaum and Eric R. Fish, Newark, on the briefs).

Joshua M. Spielberg, Cherry Hill, argued the cause for respondent (Shivers, Spielberg, Gosnay & Greatrex, attorneys).

David G. Evans, Pittstown, submitted a brief on behalf of amicus curiae Pacific Legal Foundation.

Gary S. Kull, Basking Ridge, submitted a brief on behalf of amici curiae Coalition for Litigation Justice, Inc., National Federation of Independent Business Legal Foundation, American Chemistry Council, Property Casualty Insurers Association of America, American Tort Reform Association, Chamber of Commerce of the United States of America, and National Association of Manufacturers.

Franklin P. Solomon, New York, NY, submitted a brief on behalf of amicus curiae Association of Trial Lawyers of America-New Jersey (Weitz & Luxenberg, attorneys).

Justice LaVECCHIA delivered the opinion of the Court.

The issue before us is whether a landowner can be liable for injuries allegedly caused from asbestos exposure experienced by the wife of a worker who had performed welding and steam fitting tasks that brought him into contact with asbestos on the landowner's premises. Plaintiff Anthony Olivo brought this wrongful death and survival action alleging that his deceased wife, Eleanor, was injured from inhaling asbestos that entered the household on his soiled work clothes, which she laundered. The defendant landowner, Exxon Mobil, filed a motion for summary judgment contending that it did not owe a duty of care to plaintiff's wife who had never set foot on defendant's premises. The trial court granted defendant's motion and dismissed the action. On appeal, however, the Appellate Division reversed. Olivo v. Exxon Mobil Corp., 377 N.J.Super. 286, 872 A.2d 814 (App.Div.2005). We granted Exxon Mobil's petition for certification, 185 N.J. 39, 878 A.2d 855 (2005), and now affirm the judgment of the Appellate Division and remand for further proceedings consistent with this opinion.

I.

Anthony Olivo worked as a steamfitter/welder from 1947 until he retired in 1984. He was hired out of Union Local 322 by several independent contractors to work at various industrial and commercial sites in New Jersey. One such site was Exxon Mobil's refinery in Paulsboro, New Jersey. During the course of his nearly forty-year career as a pipe welder, Anthony worked around asbestos-containing materials, including pipe covering and gaskets. Throughout his career, Anthony Olivo was married to Eleanor Olivo. As part of their daily routine when Anthony came home from work each night he would go to the basement where the family's washing machine was located, remove his work clothes, and change into clean clothing that Eleanor would leave there for him. Eleanor laundered Anthony's work clothes during the evening of every workday.

In 1989, Anthony was diagnosed with non-malignant asbestos-related disease. Eleanor was diagnosed with mesothelioma in 2000, and died shortly thereafter in 2001. Anthony filed a wrongful death action on behalf of his deceased wife, and a survival action on his own behalf. The suit named thirty-two defendants including manufacturers and suppliers of asbestos products, as well as companies such as Exxon Mobil that owned the premises where the asbestos products were used and where Anthony worked as a laborer. The complaint alleged that Eleanor contracted mesothelioma as a result of her continuous exposure to asbestos dust that was introduced into the home on Anthony's work clothes—the work clothes she routinely laundered. The complaint asserted that the premises owners, including Exxon Mobil, breached their duty to maintain a safe working environment by failing to take appropriate measures to protect Anthony, and derivatively Eleanor, from exposure to asbestos, asbestos fibers, and asbestos dust.

All defendants except Exxon Mobil settled. Exxon Mobil filed its aforementioned motion for summary judgment, in which it argued that it owed no duty to Eleanor for injuries which had occurred off premises. The trial court granted the motion, finding that "imposing an additional duty on a landowner for asbestos related injuries that occurred off of the premises would not be fair or just."

In reversing that judgment, the Appellate Division stated that foreseeability of the harm was key to determining whether a duty existed and that, in this case, the risk of harm to someone like Eleanor from exposure to asbestos was foreseeable to Exxon Mobil. Olivo, supra, 377 N.J.Super. at 294-95, 872 A.2d 814. Although the risk of injury to Eleanor was foreseeable, the Appellate Division nevertheless considered whether it was unfair to impose a duty of care on Exxon Mobil for her injuries. Id. at 295-96, 872 A.2d 814. The panel concluded that Exxon Mobil was "in the best position to prevent the harm," id. at 296, 872 A.2d 814, and could easily have warned workers such as Anthony of the risks of asbestos exposure to his health, and the health of his wife. Moreover, Exxon Mobil could have taken measures such as providing changing rooms to reduce the risk of asbestos exposure. Ibid. Finally, the panel acknowledged that although its decision arguably could expose Exxon Mobil to liability to any person harmed by coming into contact with Anthony and his work clothes, its holding was limited to a duty owed to plaintiff's decedent-wife. Id. at 297, 872 A.2d 814.

II.
A.

Courts traditionally have been reposed with responsibility for determining the scope of tort liability. Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984). The imposition of a duty to exercise care to avoid a risk of harm to another involves considerations of fairness and public policy implicating many factors. See Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996) (citing Dunphy v. Gregor, 136 N.J. 99, 110, 642 A.2d 372 (1994)). The inquiry has been summarized succinctly as one that "turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993) (citing Goldberg v. Hous. Auth., 38 N.J. 578, 583, 186 A.2d 291 (1962)).

The desire to maintain fairness and justness in our tort jurisprudence led to the recognition in Hopkins, supra, that premises liability should no longer be limited by strict adherence to the traditional and rigid common law classifications based on the status of the person entering the premises. 132 N.J. at 435-38, 625 A.2d 1110. As this Court explained when it held that a real estate broker had a duty of care in respect of a dangerous condition of property displayed to prospective buyers through an open house,

[h]istorically, the duty of the owner or occupier to such a person is gauged by the right of that person to be on the land. That status is determined by which of three classifications applies to the entrant, namely, that of a business invitee, licensee, or trespasser.

* * *

Resort to the common law methodology with its insistence on traditional classifications... does not necessarily provide reliable guidance in determining the existence and scope of [a] duty of care....

* * *

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but ... whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition ... of a general duty to exercise reasonable care in preventing foreseeable harm ... is fair and just.

[Id. at 433, 438, 625 A.2d 1110.]

Our holding in Hopkins introduced flexibility into premises liability and, since, the traditional common law classifications have been applied with pliancy "to avoid foreseeable harm to others." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 508, 677 A.2d 705 (1996). Thus premises liability law can, and should, develop in a manner consistent with its "fundamental purpose... to deter conduct that creates an unreasonable risk of injury to others." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 534-35, 688 A.2d 1018 (1997) (Stein, J., dissenting) (citing Hopkins, supra, 132 N.J. at 448, 625 A.2d 1110; People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 255, 495 A.2d 107 (1985)).

Foreseeability is significant in the assessment of a duty of care to another; moreover, it has a dual role in the analysis of tort responsibility. Generally, our jurisprudence recognizes "foreseeability as a determinant of a [defendant's] duty of care ... [as well] as a determinant of whether a breach of duty is a proximate cause of an ultimate injury." Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496,...

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