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Olivo v. Owens-Illinois

April 24, 2006

ANTHONY 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.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 377 N.J. Super. 286 (2005).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue before the Court 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 worked as a steamfitter/welder from 1947 until he retired in 1984. He was hired by several independent contractors to work at various sites in New Jersey. One such site was Exxon Mobil's refinery in Paulsboro, New Jersey. During the course of his career, Anthony worked around asbestos-containing materials, including pipe covering and gaskets. Throughout this time, Anthony was married to Eleanor. As part of their daily routine, when Anthony came home from work each night, he would go to the basement where the washing machine was located and change into clean clothing. 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 brought a 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 Eleanor Olivo who had never set foot on Exxon Mobil's premises. The trial court granted Exxon Mobil's motion and dismissed the action. On appeal, the Appellate Division reversed in a reported opinion. This Court granted Exxon Mobil's petition for certification.

HELD: To the extent that Exxon Mobil owed a duty to workers on its premises for the foreseeable risk of exposure to friable asbestos and asbestos dust, similarly, Exxon Mobil owed a duty to spouses handling the workers' unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing; there are genuine issues of material fact about the extent of the duty that Exxon Mobil owed to Anthony and whether Exxon Mobil satisfied that duty; a remand of this case is necessary to allow for the establishment of a record to determine whether the hazard-incident-to work exception applies in respect of a duty to care owed by Exxon Mobil to Anthony

1. 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. Because the focus here is on the determination of a duty, foreseeability of harm weighs in that analysis as a crucial element of determining whether imposition of a duty on an alleged tortfeasor is appropriate. Thus, in respect of a landowner's liability, whether a duty of care can be owed to one who is injured from a dangerous condition on the premises to which the victim is exposed off-premises, devolves to a question of the foreseeability of the risk of harm to that individual or identifiable class of individuals. Once the foreseeability of an injured party is established, the determination of whether imposing a duty is fair involves weighing and balancing several factors -- 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. (pp. 7-10)

2. The risk of injury to someone like Eleanor Olivo is one that should have been foreseeable to Exxon Mobil. Exxon was aware by 1937 that exposure to asbestos dust or raw asbestos was associated with asbestosis. A report prepared specifically for the petroleum industry detailed the hazards associated with occupational dust, including asbestos particles, which was prevalent at petroleum plants. Industrial hygiene texts recommend that plant owners should provide workers with the opportunity to change in and out of work clothes to avoid bringing contaminants home on their clothes. (p.10)

3. The record on summary judgment does not contain evidence that Exxon Mobil provided those precautions to laborers such as Anthony who worked with the asbestos-laden materials at its plant. It requires no leap of imagination to presume that, when Anthony worked, either he or his spouse would be handling his clothes in the process of laundering them. Exxon Mobil should have foreseen that whoever performed that task would come into contact with the asbestos that infiltrated Anthony's clothing. (pp. 10-11).

4. We hold that to the extent that Exxon Mobil owed a duty to workers on its premises for the foreseeable risk of exposure to friable asbestos and asbestos dust, similarly, Exxon Mobil owed a duty to spouses handling the workers' unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing. We agree with the fairness and justness of imposing on Exxon Mobil such a duty to plaintiff's wife. (p. 11)

5. The duty we recognize is the particularized foreseeability of harm to plaintiff's wife, who ordinarily would perform household chores that would include laundering the clothes worn by her husband. Accordingly, public policy concerns about the fairness and proportionality of the duty recognized today should dissipate. (p. 12)

6. The law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself. This exception exists because the landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly. This exception only applies when the landowner does not retain control over the means and methods of the execution. (pp. 14-15)

7. There are genuine issues of material fact about the extent of the duty that Exxon Mobil owed to Anthony and whether Exxon Mobil satisfied that duty. Accordingly, a remand of this case is necessary to allow for the establishment of a record to determine whether the hazard-incident-to-work exception applies in respect of a duty of care owed by Exxon Mobil to Anthony. If that exception applies, then no duty is owed to Anthony and no derivative duty can be imposed on Exxon Mobil for Eleanor in respect of the exposure she experienced from asbestos borne home on Anthony's work clothing. (pp. 15-17)

The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED for further proceedings ...


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