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Ryan R. Bradley
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An Illinois Take-Home Premises Liability Case Influences Decisions in Other States

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Koester & Bradley Asbestos Attorneys Recent New Jersey and Arizona premises liability cases echo back to Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006), with respect to liability from take-home exposure to a toxic substance.  It is a little-known fact that in regard to Toxic Tort litigation Illinois has been a bit of a leader in establishing a rubric to decide liability.  This is especially true regarding Asbestos litigation.  Asbestos was used in massive quantities across Central Illinois and cases have centralized not only in the south but in Champaign and Vermilion Counties as well.

In Olivo, pipe welder Anthony Olivo worked for Exxon Mobil for forty years where he frequently came into contact with asbestos-containing materials. After work, Olivo left his clothes for his wife, Eleanor, to wash. Eleanor was subsequently diagnosed with mesothelioma in 2000 and, sadly, died in 2001. Olivo brought a wrongful death suit against Exxon.

In Schwartz v. Accuratus Corp. (July 6, 2016), the New Jersey Supreme Court held that Olivo’s premises liability rule may, in fact, extend to non-spouses exposed to toxic substances provided that the injury is “reasonably foreseeable and imposition of the duty serves the interests of fairness and justice.”  This is a major development in that it allows the reach of contamination to extend to individuals that were not even directly exposed to the toxic substance such as Asbestos.

Schwartz involved a married couple in which the wife contracted irreversible beryllium disease as a result of her exposure to airborne beryllium particles from the factory where her husband had worked before the couple married. The suit alleges that before their marriage, she would spend time at his apartment where she was exposed to beryllium deposited on his clothes. Plaintiffs alleged that Accuratus was liable for her injury on the grounds of take-home toxic tort liability; however, because they were unmarried at the time, Accuratus claimed that she was not owed a duty of care. On appeal, plaintiffs argued that the trial court erred in dismissing the premises liability claims and that there was no language inOlivo that limited harm to spouses.

In premises liability cases, courts must first address the foreseeability issue, which the New Jersey Court did. Once foreseeability is established, then it must weigh the relationship between the parties, nature of the attendant risk, opportunity and ability o exercise care, and public interest to determine the fairness of imposing a duty on the company.

In September, the Arizona Court of Appeals refused to permit a claim for “take-home” asbestos exposure in Quiroz v. Alcoa, Inc. (Sept. 20, 2016). Other states such as Georgia, Iowa, Delaware, Maryland, Texas, Michigan, and New York have echoed Arizona’s holding that no duty to warn exists for “take-home” exposures. The California Supreme Court is expected to issue its rule soon in a similar case.

For more information on any issue related to premises liability law, please contact us.

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