                                                      SYLLABUS

(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
interest of brevity, portions of any opinion may not have been summarized.)

                       Brenda Ann Schwartz v. Accuratus Corporation (A-73-14) (076195)

Argued April 25, 2016 -- Decided July 6, 2016

LaVECCHIA, J., writing for a unanimous Court.

        In this appeal, the Court considers the following question of law certified by the United States Court of
Appeals for the Third Circuit: Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J.
394 (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?

           The action before the Third Circuit involves plaintiffs Brenda Ann and Paul Schwartz. After Brenda was
diagnosed with chronic beryllium disease, the Schwartzes filed a complaint raising claims of negligence, products
liability, and strict liability against defendant Accuratus Ceramic Corporation (Accuratus), a ceramics facility where
Paul had worked in 1978 and 1979. In 1979, Paul began sharing an apartment with an Accuratus co-worker,
Gregory Altemose. At the time, Paul and Brenda were dating and Brenda frequently visited and stayed overnight at
the apartment. After the couple married in June 1980, Brenda and Paul resided in the apartment, where Altemose
also continued to live. Brenda performed laundry and other chores at the apartment, both when she stayed with Paul
prior to their marriage and after she moved in as Paul’s wife.

          The complaint alleges that employees at Accuratus’s facility were exposed to beryllium, which, according
to plaintiffs, may result in cancer and other diseases of the lungs and skin. Plaintiffs allege that Brenda was
subjected to take-home beryllium exposure due to Paul and Altemose bringing the substance home from Accuratus
on their work clothing. Thus, plaintiffs’ take-home-toxin theory of liability is based in part on Brenda’s exposure to
beryllium for the period that she frequently stayed over at the apartment prior to her marriage to Paul. Additionally,
the take-home-toxin theory encompasses the time period after the marriage, premised on the theory that Altemose
continued to bring the substance home to the shared apartment from his work at the Accuratus facility.

           Originally filed in Pennsylvania state court, plaintiffs’ case was removed to the United States District Court
for the Eastern District of Pennsylvania. Plaintiffs’ motion to remand was denied. The federal district court
concluded that “neither [New Jersey nor Pennsylvania] has recognized a duty of an employer to protect a worker’s
non-spouse . . . roommate from take-home exposure to a toxic substance.” The court pointed to Olivo v. Owens-
Illinois, Inc., 186 N.J. 394 (2006) as support for that proposition. The court denied plaintiffs’ motion for
reconsideration, commenting that to interpret Olivo as supporting a duty to Brenda would “stretch the New Jersey
Supreme Court’s decision . . . beyond its tensile strength.” After the Schwartzes filed an amended complaint,
Accuratus filed a motion to dismiss, which was granted. The federal district court concluded as a matter of law that
Accuratus did not owe a duty of care to Brenda.

         Following additional motion practice, the Schwartzes filed a notice of appeal with the Third Circuit. The
Third Circuit filed a Petition for Certification of a Question of State Law, pursuant to Rule 2:12A-1, which the Court
accepted. 222 N.J. 304 (2015).

HELD: The duty of care recognized in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) may, in proper
circumstances, extend beyond a spouse of a worker exposed to a workplace toxin that is the basis for a take-home
toxic-tort theory of liability.

1. The threshold question certified by the Third Circuit -- whether the premises liability rule set forth in Olivo may
extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s
premises -- necessitates a review of Olivo and the reasoning that led to its holding. In Olivo, the Court considered
whether a landowner could be liable for injuries allegedly caused from asbestos exposure experienced by the wife of

                                                           1
a worker who had performed welding and steam fitting tasks that brought him into contact with asbestos on the
landowner’s premises. There, the Court explained “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
foreseeability of the risk of harm to that individual or identifiable class of individuals.” Id. at 403. Once
foreseeability is established, a court must evaluate whether recognition of a duty accords with fairness, justness, and
predictability, applying the following factors derived, in part, from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
439 (1993): (1) the relationship of the parties, namely the relationship between plaintiff and defendant; (2) the
nature of the attendant risk, including the danger of the toxin at issue and how easily the toxin is transmitted and
causes injury (the greater the danger, the greater the duty); (3) the opportunity and ability to exercise care; and (4)
the public interest in the proposed solution. (pp. 7-9)

2. Based on the facts presented in Olivo’s summary judgment record, the Court determined that the landowner
should have foreseen that sending unprotected, soiled work clothes home on the backs of workers would result in
their clothes being laundered. That placed the person, who could be expected to perform the task of handling and
laundering the unprotected work clothing, in regular and close contact with material that had become infiltrated with
asbestos in the worksite. As a result, the Court held that a duty of care to protect on-site workers from exposure to
friable asbestos in the worksite extended to spouses “handling the workers’ unprotected work clothing based on the
foreseeable risk of exposure from asbestos borne home on [the workers’] contaminated clothing.” Olivo, supra, 186
N.J. at 404-05 (emphasis added). Applying the Hopkins factors, the Court concluded that fairness and justness
would be served by extending off-premises liability in that setting. (pp. 9-11)

3. In so holding, the Court determined that the landowner’s concerns about essentially limitless liability were
unfounded because the duty recognized under the circumstances of Olivo was “focused on the particularized
foreseeability of harm to plaintiff’s wife.” Id. at 405. That concise statement cannot be taken out of its context -- a
duty was found to exist based on the foreseeability of regular and close contact with the contaminated material over
an extended period of time. Id. at 404-05. The duty of care for take-home toxic-tort liability discussed in Olivo was
not defined by the role of lawfully wedded spouse to someone who worked on the landowner’s premises. Rather, it
was foreseeable that Eleanor (plaintiff’s wife) would be handling and laundering the plaintiff’s soiled, asbestos-
exposed clothes, which the landowner failed to protect at work and allowed to be taken home by workers. That
easily foreseeable, regular, and close contact with the dangerous condition produced the conclusion that the
landowner could be held liable to Eleanor for her injuries. (pp. 11-13)

4. Tort law is built on case-by-case development based on the facts presented by individual cases. The evolution of
case law must reflect the simultaneous evolution of societal values and public policy. Olivo does not suggest that
the duty recognized must remain static for all future cases -- no matter the pleadings and proofs, including unknown
aspects of other toxins -- and that take-home toxic-tort liability must remain limited to a spouse handling take-home
toxins. Olivo does not state, explicitly or implicitly, that a duty of care for take-home toxic-tort liability cannot
extend beyond a spouse. Nor does it base liability on some definition of “household” member, or even on the basis
of biological or familial relationships. Olivo must be recognized as a step in the development of the common law,
which of necessity is built case by case on individual factual circumstances. (pp. 13-16)

5. The Court cannot define the contours of the duty owed to others in a take-home toxic-tort action through a
certified question of law. While there may be situations in which household members are in contact with toxins
brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-
case assessment in toxic-tort settings. Although the Court cannot predict the direction in which the common law
will evolve, the Court identifies certain factors that will be important as such cases present themselves. In sum, the
duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse. The
assessment should take into account a weighing of the factors identified herein to determine whether the
foreseeability, fairness, and predictability concerns of Hopkins should lead to the conclusion that a duty of care
should be recognized under common law. (pp. 16-19)

     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.




                                                          2
                                      SUPREME COURT OF NEW JERSEY
                                        A-73 September Term 2014
                                                 076195

BRENDA ANN SCHWARTZ and PAUL
GRANT SCHWARTZ,

    Appellants-Appellants,

         v.

ACCURATUS CORPORATION, In Its
Own Right and as Successor in
Interest to Accuratus Ceramic
Corporation,

    Respondents-Respondents,

         and

MATERION BRUSH INC., C/O CT
Corporation System,

    Defendant.


         Argued April 25, 2016 – Decided July 6, 2016

         On certification of question of law from the
         United States Court of Appeals for the Third
         Circuit.

         Ruben Honik argued the cause for appellants
         (Golomb & Honik, attorneys).

         Joseph G. Harraka, Jr., argued the cause for
         respondents (Becker Meisel, attorneys; Mr.
         Harraka, David G. Tomeo, and A. Wesley
         Bridges, Jr., on the brief).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    This matter presents a question of law certified and

submitted to this Court by the United States Court of Appeals

                                  1
for the Third Circuit pursuant to Rule 2:12A-1.     The question

relates to this Court’s earlier opinion in Olivo v. Owens-

Illinois, Inc., 186 N.J. 394 (2006).

    The issue in Olivo was “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.”   Id. at 398-99.   Based on the facts as

presented in Olivo’s summary judgment record and considerations

of fairness and justness, we recognized a duty owed to spouses

allegedly injured from “handling the workers’ unprotected work

clothing[,] based on the foreseeable risk of exposure from

asbestos borne home on contaminated clothing.”    Id. at 404-05.

    The Third Circuit now asks:    “Does the premises liability

rule set forth in Olivo 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?”

                              I.

    The action before the Third Circuit that led to the

certified question involves plaintiffs Brenda Ann and Paul

Schwartz, who are residents of Pennsylvania.   In September 2012,

a month after Brenda was diagnosed with chronic beryllium



                                   2
disease,1 the Schwartzes filed a complaint in Pennsylvania state

court, raising claims of negligence, products liability, and

strict liability.    The complaint named as a defendant Accuratus

Ceramic Corporation (Accuratus), a ceramics facility located in

Washington, Warren County, New Jersey, where Paul had worked in

1978 and 1979.    The allegations against Accuratus were based on

a theory of take-home toxic-tort liability.    Paul’s employment

at Accuratus preceded the couple’s marriage, but it encompassed

a period when Brenda frequently stayed at Paul’s residence,

which he shared with another Accuratus co-worker, Gregory

Altemose.

     The facts to support the Schwartzes’ take-home toxic-tort

theory of liability can be summarized from the pleadings as

follows.    In the spring of 1979, Paul began sharing an apartment

in Pennsylvania with Altemose.    At the time, Paul and Brenda

were dating and Brenda frequently visited and stayed overnight

at the apartment with Paul.   After the couple married in June

1980, Brenda and Paul resided in the apartment, where Altemose

also continued to live.2   Brenda performed laundry and other



1 According to the complaint, chronic beryllium disease is an
irreversible and largely untreatable disease affecting lung
tissue that is caused by exposure to airborne beryllium
particles.
2 It is unclear how long Altemose lived with the Schwartzes after
they were married. The pleadings are silent on the matter. The
district court describes that the three lived together “for a
                                    3
chores at the apartment, both when she stayed with Paul prior to

their marriage and after she moved in as Paul’s wife.    She

laundered her and Paul’s clothing and towels, as well as the

towels used by Altemose.   She also cleaned her and Paul’s parts

of the apartment and common areas.

     While Brenda and Paul dated but did not yet reside together

on a full-time basis, Paul was employed as a machinist for

Accuratus at its facility in Washington.   Altemose, Paul’s

apartment mate, and later Brenda’s as well, became employed at

Accuratus’s Washington facility in 1978, and his employment

continued through the date of the filing of the complaint.     In

1979, prior to Paul and Brenda’s marriage, Paul became employed

by co-defendant Materion Brush, Inc., where he worked from 1979

to 1987.

     Importantly, for present purposes, the complaint alleges

that employees at Accuratus’s facility were exposed to

manufacturing processes that included the production, casting,

cutting, grinding, and cleaning of beryllium oxide ceramics and

other materials containing beryllium.3   According to plaintiffs,




time”; the Third Circuit states that they lived together for
“several years.”

3 Beryllium, the fourth element on the periodic table, is one of
the lightest metals and has one of the highest melting points.
Its properties lead to varied uses in industrial and
manufacturing settings, including in ceramic applications. See
                                     4
in industrial settings, any action that disturbs the surface

layer of beryllium will produce particles that become suspended

in the air and can be inhaled.   It is further alleged that

exposure to beryllium may result in cancer and other diseases of

the lungs and skin.   Plaintiffs contend that according to

scientific literature, without proper industrial hygiene

controls, beryllium dust produced by manufacturing activity can

spread throughout a facility, be deposited on the clothing and

shoes of workers, and then transported into employees’

automobiles and homes.   Further, plaintiffs maintain that

studies show that, once a home environment is contaminated with

beryllium, ordinary household chores such as vacuuming and

dusting can re-suspend beryllium particles, causing persons in

the home to be repeatedly exposed to beryllium.

    Plaintiffs allege that Brenda was subjected to take-home

beryllium exposure due to Paul and Altemose bringing the

substance home from Accuratus on their unprotected work

clothing.   Thus plaintiffs’ take-home-toxin theory of liability

is based in part on Brenda’s exposure to beryllium for the

period that she frequently stayed over at the apartment prior to

her marriage.   Additionally, the take-home-toxin theory as it

pertains to defendant Accuratus encompasses the time period



Los Alamos Nat’l Lab., Periodic Table of Elements: LANL,
http://periodic.lanl.gov/4.shtml (last visited June 15, 2016).
                                   5
after Brenda and Paul’s marriage, premised on the theory that

Altemose continued to bring the substance home to the shared

apartment from his work at the Accuratus facility.

    Originally filed in Pennsylvania state court, plaintiffs’

case was removed to the United States District Court for the

Eastern District of Pennsylvania.    Plaintiffs’ motion to remand

was denied.    In denying the motion to return the case to state

court, the federal district court noted that the parties

disputed whether New Jersey or Pennsylvania law applied to

plaintiffs’ claims, but concluded the dispute was not a matter

of concern because “neither state has recognized a duty of an

employer to protect a worker’s non-spouse . . . roommate from

take-home exposure to a toxic substance.”    The court pointed to

Olivo as support for that proposition.   The court denied

plaintiffs’ motion for reconsideration, again commenting that to

interpret Olivo as supporting a duty to Brenda would “stretch

the New Jersey Supreme Court’s decision . . . beyond its tensile

strength.”    The court added, concerning whether Altemose’s

employment could supply a liability link between Brenda and

Accuratus, that “it is hard to imagine where the foreseeability

link could ever be severed” if “New Jersey law [were to] find a

foreseeable duty owed by an employee . . . to another employee’s

non-spouse visitor/co-habitant.”



                                    6
     After the Schwartzes filed an amended complaint, and

subsequent motion practice eliminated certain claims,4 Accuratus

filed a motion to dismiss, which was granted.    The court

declared it “unreasonable to hold Accuratus to sharp enough

foresight to realize that [Brenda] would later marry one of

their employees.”   The court concluded as a matter of law that

Brenda was not owed a duty of care by Accuratus.

     In April 2014, the Schwartzes sought to certify the duty-

of-care question to the United States Court of Appeals for the

Third Circuit for interlocutory appeal.     The motion was denied.

They then filed a motion to voluntarily dismiss all remaining

claims in order to produce a final and appealable order.     That

motion was granted.

     On September 24, 2014, the Schwartzes filed a notice of

appeal with the Third Circuit.   On June 22, 2015, the Third

Circuit filed the instant Petition for Certification of a

Question of State Law, which we accepted.    222 N.J. 304 (2015).

     The first and threshold question certified by the Third

Circuit -- whether the premises liability rule set forth in




4 In addition to bringing claims against Accuratus, plaintiffs
brought claims against Materion Brush and Dennis P. Tretter, a
Pennsylvania citizen who was in charge of enforcing safety
policies at Accuratus’s Washington facility. Materion Brush
settled with plaintiffs before the appeal to the Third Circuit.
Tretter was dismissed from the action by the federal district
court.
                                   7
Olivo may extend beyond providing a duty of care to the spouse

of a person who was exposed to toxic substances while on the

landowner’s premises -- necessitates a review of Olivo and the

reasoning that led to its holding.

                                  II.

    Olivo, supra, came to the Court on a record developed on a

motion for summary judgment.     186 N.J. at 399.        That record

presented the following facts.    Anthony Olivo had been a pipe

welder for nearly forty years, during which he performed welding

activities as an independent contractor at Exxon Mobil’s

refinery in Paulsboro, New Jersey.          Ibid.   In the course of his

work, Anthony was frequently in contact with asbestos-containing

materials, including pipe covering and gaskets.          Ibid.   At the

end of each workday, Anthony would return home in his work

clothes and leave them in the home’s basement laundry area for

his wife, Eleanor, who laundered the work clothes “during the

evening of every workday.”     Ibid.    Eleanor was diagnosed with

mesothelioma in 2000, and died shortly thereafter.          Ibid.

Anthony brought a wrongful death action on behalf of his wife’s

estate.   Id. at 399-400.

    In Olivo, we explained “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 foreseeability of the risk of harm to that

                                        8
individual or identifiable class of individuals.”      Id. at 403.

In those types of cases, “[t]he risk reasonably to be perceived

defines the duty to be obeyed; it is the risk reasonably within

the range of apprehension, of injury to another person, that is

taken into account in determining the existence of a duty.”

Ibid. (quoting Clohesy v. Food Circus Supermkts., Inc., 149 N.J.

496, 503 (1997)).     Once foreseeability of risk to an injured

person is established, a court also must evaluate factors that

affect whether recognition of a duty accords with fairness,

justness, and predictability.     The following factors are applied

in that evaluation:     (1) the relationship of the parties, namely

the relationship between plaintiff and defendant; (2) the nature

of the attendant risk, including the danger of the toxin at

issue and how easily the toxin is transmitted and causes injury

(the greater the danger, the greater the duty); (3) the

opportunity and ability to exercise care; and (4) the public

interest in the proposed solution.       See id. at 403-04

(referencing, for support, Hopkins v. Fox & Lazo Realtors, 132

N.J. 426, 439 (1993)).

    Applying the factors generated from the Hopkins analysis,

we said in Olivo that “the risk of injury to someone like

Eleanor Olivo is one that should have been foreseeable to Exxon

Mobil.”   Id. at 404.   In balancing the interests, we determined

that the record provided evidence that Exxon had knowledge of

                                     9
the hazard caused by friable asbestos as well as the nature or

methods of exposure.   See ibid.   The record also disclosed the

absence of any evidence that precautions had been undertaken by

Exxon to ensure that there would not be take-home exposure from

friable asbestos, notwithstanding that precautionary steps for

employers to take were known within the industry.      Ibid.   We

determined that Exxon should have foreseen that sending

unprotected, soiled work clothes home on the backs of workers

would result in their clothes being laundered, and that placed

the person, who could be expected to perform the task of

handling and laundering the unprotected work clothing, in

regular and close contact with material that had become

infiltrated with asbestos at Exxon’s site.     Ibid.   We therefore

held that a duty of care to protect on-site workers like Anthony

from exposure to friable asbestos in the worksite extended to

spouses “handling the workers’ unprotected work clothing based

on the foreseeable risk of exposure from asbestos borne home on

[the workers’] contaminated clothing.”     Id. at 404-05 (emphasis

added).

    With regard to the Hopkins factors that address whether the

foreseeability of an injured party should fairly lead to the

imposition of a duty, we concluded that fairness and justness

would be served by extending off-premises liability in the

setting in Olivo.   Id. at 405.    The duty recognized in Olivo was

                                    10
expressly built on easily foreseen contact with the dangerous

substance that could have been avoided by Exxon’s opportunity to

take reasonable precautionary steps.       Id. at 404.     The danger

from the toxin was known, and the steps to minimize the danger

and avoid injury to a class of identifiable persons off-premises

was viewed as not burdensome and in the public interest.            Id. at

405.

       We considered Exxon’s concerns about essentially limitless

liability to be unfounded because the holding in Olivo was

confined to the facts of the case:       “[t]he duty we recognize in

these circumstances is focused on the particularized

foreseeability of harm to plaintiff’s wife.”       Ibid.    Even that

concise statement cannot be taken out of its context -- a duty

was found to exist in Olivo based on the foreseeability of

regular and close contact with the contaminated material (the

dangerous condition) over an extended period of time.          Id. at

404-05.   That assessment led to the finding of a duty that could

support Exxon’s liability to Olivo’s wife, Eleanor.         Ibid.    It

was foreseeable that she would handle and launder her husband’s

soiled and contaminated clothes, which were allowed by Exxon to

be taken home.   Id. at 404.   That reasonably predictable,

regular and close contact with a dangerous toxin produced the

conclusion that Exxon could be held liable to Eleanor for her

injuries.   Id. at 405.

                                    11
                                III.

    The Third Circuit now asks:    Does Olivo extend beyond

providing a duty of care to the spouse of a person exposed to

toxic substances on the landowner’s premises; and if the duty

does extend beyond spouses, what are the limits on that

liability rule and the associated scope of duty?

    Plaintiffs argue that Olivo should not be read as

establishing a foreseeable duty only for spouses injured due to

handling a take-home toxin.   Plaintiffs urge that no bright line

should be drawn from Olivo’s holding.    They emphasized at oral

argument that facts such as regular cohabitation and the tasks

that a cohabiting household member is likely to perform should

weigh heavily in determining whether a foreseeable duty may

exist.    They also acknowledged that the nature of the duty that

may exist is dependent on the nature of the toxin involved.

    Accuratus argues against adoption of a broad legal duty

owed to all household members in take-home toxic-tort cases.       It

maintains that such a rule would not justly and fairly contain

liability for derivative take-home toxic-tort actions.      At oral

argument, Accuratus refined its position, acknowledging that a

marriage license is not a prerequisite for recognition of a duty

to an injured household member suing on a take-home toxic-tort

theory.   Accuratus also conceded that a legal duty could

encompass members of the immediate family living together.

                                    12
However, Accuratus contends that a legal duty should not be

recognized for other individuals who have irregular or sporadic

contact with an employee who brings home a toxic substance.

Such contact, according to Accuratus, should not be determined

as a matter of law to be reasonably foreseeable to a landowner

defendant.

                                IV.

    The duty of care for take-home toxic-tort liability

discussed in Olivo was not defined on the basis of Eleanor’s

role as the lawfully wedded spouse to Anthony.      Our reasoning in

Olivo was not so much that Eleanor was married to a worker at

Exxon who brought asbestos-contaminated clothing home from work

but that it was foreseeable that she would be handling and

laundering the soiled, asbestos-exposed clothes, which Exxon

failed to protect at work and allowed to be taken home by

workers.   Id. at 404-05.    That easily foreseeable, regular, and

close contact with the dangerous condition produced the

conclusion that Exxon could be held liable to Eleanor for her

injuries; the Court also concluded that it was fair to impose a

duty that could be assessed for negligence, proximate cause, and

damages.   See id. at 405.

    Tort law is built on case-by-case development based on the

facts presented by individual cases.       In Olivo, our Court was

acting in its traditional role as a court of common law, and one

                                      13
of the common law’s “great virtue[s]” is that it is dynamic,

adaptable, and can evolve to accommodate changes in society.

State v. Culver, 23 N.J. 495, 505, cert. denied, 354 U.S. 925,

77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957).

    In our stewardship of the common law, this Court has

recognized, time and again, that the evolution of case law must

reflect the simultaneous evolution of societal values and public

policy.   See Hopkins, supra, 132 N.J. at 435 (stating that

common law “cannot be immutable or inflexible”).   In the

specific arena of tort liability, the common law requires

flexibility to grow and change when appropriate to accommodate

new expectations and ideas.   See Kelly v. Gwinnell, 96 N.J. 538,

552 (1984) (indicating that, in tort liability, there is need

for “a continuing judicial involvement” in deciding such

matters).   It was in that context that we began our discussion

of the issue in Olivo, supra, emphasizing that “[c]ourts

traditionally have been reposed with responsibility for

determining the scope of tort liability.”   186 N.J. at 401.

    Olivo does not suggest that the duty recognized must remain

static for all future cases -- no matter the pleadings and

proofs, including unknown aspects of other toxins -- and that

take-home toxic-tort liability must remain limited to a spouse

handling take-home toxins.    That simply was an essential fact of

the case on which we were called on to act, as a court of common

                                   14
law, and determine whether, in the development of our common

law, a foreseeable duty could be recognized on the facts

presented.   We held that it could.    However, Olivo does not

state, explicitly or implicitly, that a duty of care for take-

home toxic-tort liability cannot extend beyond a spouse.        Nor

does it base liability on some definition of “household” member,

or even on the basis of biological or familial relationships.

    Olivo must be recognized as a step in the development of

the common law, which of necessity is built case by case on

individual factual circumstances.      The facts that go into

assessing the relationship of the parties certainly are

important.   We note that no precedent from another jurisdiction,

in a non-strict liability setting, has found a duty in a take-

home toxic-tort cause of action outside of a factual setting

involving household members, presumably because of the

idiosyncratic nature of most other interactions with a take-home

toxin.   See, e.g., Zimko v. Am. Cyanamid, 905 So. 2d 465, 483

(La. Ct. App. 2005) (finding that American Cyanamid owed

“general duty to act reasonably in view of the foreseeable risks

of danger to household members of its employees resulting from

exposure to asbestos fibers carried home on its employee’s

clothing, person, or personal effects” and noting that “it is

hardly a quantum leap to extend the duty of care owed to

employees to members of the employee’s household who predictably

                                      15
come into routine contact with the employee’s clothing”

(quotation marks and citation omitted)); Satterfield v. Breeding

Insulation Co., 266 S.W.3d 347, 374-75 (Tenn. 2008) (finding

that defendant owed duty to employee’s minor daughter who was

exposed to take-home asbestos via father’s work clothes and

later developed mesothelioma allegedly due to that early

exposure).

    That said, we cannot define the contours of the duty owed

to others in a take-home toxic-tort action through a certified

question of law.    While there may be situations in which

household members are in contact with toxins brought home on

clothing, a refined analysis for particularized risk,

foreseeability, and fairness requires a case-by-case assessment

in toxic-tort settings.   As this Court stated in Hopkins, supra,

regarding tort liability cases, “[t]he analysis is both very

fact-specific and principled; it must lead to solutions that

properly and fairly resolve the specific case and generate

intelligible and sensible rules to govern future conduct.”      132

N.J. at 439.

    Olivo, supra, addressed the paramount importance of

foreseeability.    See 186 N.J. at 402-03 (explaining that duty-

of-care question for take-home toxic-tort liability “devolves to

a question of foreseeability”).   However, “considerations of

fairness and policy” also inform the analysis as to whether a

                                    16
duty of care exists.    Id. at 403; see Estate of Desir ex rel.

Estiverne v. Vertus, 214 N.J. 303, 326, 328-30 (2013).

    We cannot predict the direction in which the common law

will evolve.   Certain factors will be important as such cases

present themselves.    First, case law counsels that the

relationship of the parties is, of necessity, relevant and

weighty.   See Hopkins, supra, 132 N.J. at 439.   That would

include an assessment not only of the relationship between a

defendant’s employee and the person who is exposed to the take-

home toxin, but also the relationship between the defendant

itself and the injured person, in determining whether it would

be foreseeable, predictable, and just to find that the defendant

owed a duty of care to that injured person or class of

individuals.   To that end, idiosyncratic encounters would be

difficult to ever predict, even when occurring within the home

of the person on whom the toxin is transported.    Second, the

opportunity for exposure to the dangerous substance and the

nature of the exposure that causes the risk of injury affects

the foreseeability analysis.    Third, and related to the second

factor, courts must take into account the employer’s knowledge

of the dangerousness of exposure, assessed at the time when the

exposure to the individual occurred and not later, when greater

information may become available.    In a non-strict-liability

negligence action, the dangerousness of the toxin, how it causes

                                    17
injury, and the reasonable precautions to protect against a

particular toxin are relevant in identifying a foreseeable duty

by a landowner for off-premises exposure of dangerous toxins.

    Although chance contact with a worker transporting home a

toxic substance from another’s premises should not suffice to

create a duty of care under the cautioning words of Vertus,

supra, 214 N.J. at 328-30, we cannot create an abstract bright-

line rule at this time as to “who’s in and who’s out” on a

negligence-based take-home toxic-tort cause of action based on

Olivo or any previous decision.    The contours of the issue defy

definition in such manner.

    Our response to the question asked by the Third Circuit

will have to be limited to clarifying that the duty of care

recognized in Olivo may extend, in appropriate circumstances, to

a plaintiff who is not a spouse.   We further instruct that the

assessment should take into account a weighing of the factors

identified herein to determine whether the foreseeability,

fairness, and predictability concerns of Hopkins should lead to

the conclusion that a duty of care should be recognized under

common law.

                              V.

    We hold that the Olivo duty of care may, in proper

circumstances, extend beyond a spouse of a worker exposed to the



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toxin that is the basis for a take-home toxic-tort theory of

liability.



     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion.




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