Pennsylvania Court Finds That An Employer’s Take-Home Duty Can Extend To Girlfriends Of Former Employees

by Husch Blackwell LLP
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A Pennsylvania District Court recently denied a defendant’s motion for summary judgment of the issue of duty, finding that that an employer’s take home duty may in certain situations extend to the girlfriend of a former employee. Plaintiff Brenda Schwartz and her husband, Paul Schwartz (“Plaintiffs”), brought a negligence action against Defendant Accuratus Corporation (“Defendant”), alleging that Mrs. Schwartz had contracted chronic beryllium disease (“CBD”) from exposure to beryllium brought home on Mr. Schwartz’s clothes while he was an employee of Defendant. Mrs. Schwartz also claims exposure to beryllium from Mr. Schwartz’s roommate, Gregory Altemose, who was also an employee of Defendant. Schwartz v. Accuratus Corporation, No. 12-6189 at *1 (E.D. Pa. 2018).

This case involves a complex and interesting fact pattern. Mr. and Mrs. Schwartz began dating in 1978 when Mr. Schwartz worked for Defendant. In 1979, Mr. Schwartz moved into an apartment on Grant Street with Mr. Altemose. According to the testimony offered in the case, Mrs. Schwartz spent considerable amounts of time at their apartment. Although the defendants disputed her status as an “overnight guest” at the apartment, Mrs. Schwartz frequently stayed at the apartment until the early hours of the morning. In 1980, Plaintiffs married, and Mrs. Schwartz moved into the Grant Street apartment with Mr. Schwartz and Mr. Altemose. Although Mr. Schwartz soon left Defendant, Mr. Altemose continued to work there while the group cohabitated at the Grant Street Apartment.

In August 2012, more than 30 years after Mrs. Schwartz first came into contact with Mr. Schwartz and Mr. Altemose, Mrs. Schwartz was diagnosed with CBD. Shortly afterwards, Plaintiffs filed claims for negligence, loss of consortium, and exemplary damages against Defendant in state court. The case was removed to federal court by the defendants, but the United States District Court for the Eastern District of Pennsylvania dismissed the negligence claim against Defendant, holding that the duty of care could not extend to Mrs. Schwartz as either Mr. Schwartz’s girlfriend or as Mr. Altemose’s roommate. Plaintiffs appealed the dismissal, and the Third Circuit certified the following question to the New Jersey Supreme Court: “Does the premises liability rule set forth in Olivo v. Owens-Illinois, 895 A.2d 1143 (N.J. 2006) extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises, and, if so, what are the limits on that liability rule and the associated scope of duty?” In response, the New Jersey Supreme Court clarified that Olivo did not establish a bright line rule limiting take home duty to spouses and held that “a refined analysis for a particularized risk, foreseeability, and fairness” must be conducted on a case-by-case assessment in toxic tort settings. The case was then remanded to state court for further consideration.

The Eastern District of Pennsylvania, applying New Jersey substantive law, held that an employer’s duty of care may be extended to the girlfriend of an employee because an employer can reasonably foresee that “virtually all of its employees live with or have repeated close contact with someone.” The Court set forth a three-factor analysis for foreseeability: 1) the relationship of the parties; 2) the opportunity for exposure and the nature of the exposure to the dangerous substance that causes the risk of injury; and 3) the employer’s knowledge of the dangerousness of the exposure, assessed at the time when the exposure to the individual occurred.

The Court conceded that beryllium exposure carries the risk of serious injury and that even a short exposure to beryllium many years ago can result in the development of CBD. As to Defendant’s knowledge of the dangerousness of exposure, the Court held that Defendant may have been aware of the dangerousness of beryllium exposure and the necessary response to prevent the danger. The Court reached this conclusion because “many of [Defendant’s] colleagues, suppliers, and competitors…had already taken steps to keep beryllium dust from leaving the premises on the clothes, hair, or skin of workers.” The Court dismissed Defendant’s argument that expanding this duty of care would result in a “practically limitless” pool of remotely exposed persons, stressing that the relationship between the parties would be dispositive of the issue of duty.

The Court first discussed the relationship between Defendant and Mrs. Schwartz. Although no direct relationship between those parties existed, the Court stated that Defendant “should have been aware” of the dangers of beryllium and the risk of exposure to an occasional visitor to the home of an employee. Although Mrs. Schwartz never had a legal marriage relationship with Mr. Schwartz while he was working for Defendant, the Court stated that the duty-creating relationship threshold must be considered “relatively low” due to the dangerousness of the toxin.

The Court stated that the relationship between Mrs. Schwartz and both Mr. Schwartz and Mr. Altemose was “predictable, regular, and close” such that a take-home duty could be imposed on Defendant. For example, Mrs. Schwartz would frequently socialize with Mr. Schwartz after work, pick him up after work, and spend long hours at the Grant Street apartment. Furthermore, Mrs. Schwartz testified to picking up after Mr. Altemose, handling his work clothes, and washing the roommates’ towels once a week. Mrs. Schwartz also socialized with Mr. Altemose in the common areas of the apartment. Following the Plaintiffs’ marriage, Mrs. Schwartz moved into the Grant Street apartment, and the parties lived together for approximately four years.

Defendant attempted to dispute the closeness of Mrs. Schwartz’s contact with both Mr. Schwartz and Mr. Altemose, arguing that Mrs. Schwartz spent much less time at the Grant Street apartment than was represented, and that the domestic norms in the 1970s and 1980s would have produced less close contact between two parties that were merely dating. The Court dismissed this reasoning, reasserting that “nearly all people at all times have close relationships with others, have regular contact with others in their homes, and in most cases live with others who share space and housework.”

Applying the above-stated analysis, the Court denied Defendant’s motion for summary judgment because “genuine issues of material fact exist regarding Defendant’s take home liability and Mrs. Schwartz’s status as a foreseeable plaintiff.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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