substantial about a period but i'll be mindful of that and for the case this case presents on appeal a very narrow but nonetheless very important issue and principle of new jersey law dealing especially with question immediately came to me is why why should we site this is this the kind of case that we should be asking the new jersey supreme court to catch would be certifying this question i think not judge jordan i think this is a case that's right in the wheel house of every federal court you know at the district court level or in the case of a reviewing panel such as this where planning steam although it's not a federal question there is no question that this is a narrow question of state new jersey individuals coming in close and frequent contact with the employee and wrote correct it's true judge we believe a fair reading of the lead is broad enough to compass household members that was that was the the house hold the answer for me your honor would be yes to both however the assignment of error that we propose here is is really quite narrow are we vote recall answered the question whether take home exposure from an exxon mobil property in which as best this was used whether a duty from that property operator can extend to the right were never set foot on the property he was not an employee traditionally a tort law to look at it through the prism premises live through it and the courts in new jersey and in pennsylvania and throughout most of the united states routed by determining the legal status of the individual involved so in the case of a slip in foreign promises for example the court would ask are you a business invite to your license or you were trespassing and your rights on the property or surrounding the property would flow from the important principle here and the one we're asking this court to embrace is that new jersey no longer looks at legal status without more so that that's not controversial so when you say you ask us to embrace it there's  we're not talking about limitless liability here we're talking about the spouse and it was certainly foreseeable that the spouse would be involved they did day in ordinary household chores like helping you go on so it's not it's not something to worry about when you say this is quite narrow it's potentially not now i'll respectfully judge jordan the alito court did not do what the old we both did and this is where the assignment of admonish all sorts thereafter looking at this issue to look at multiple factors and not merely legal status susumu tell us what is the limiting factor when you suggest so there are two constellation as they became engaged and got married in june of eighty they'd been married ever since and so what we have here is a period that straddles both the premarital and marital relationship number one number two w fact number two is they were roommates with another employee of act around that we but we also but but the district court didn't consider that in its analysis and they said this is talk about i'm going to push this back it must be a case by case analysis and if we learn nothing but this from a leave oh it's that the courts considering the extent and scope of duty has to look at a multitude of factors for this and this specific assignment general public ability so when you look at what you're asking us do we have to ask ourselves are you pushing us past the legal and does it make sense now you said a remote doesn't do what i try to describe as doing so i'm going wandering in and out of the house it is the wife don't worry about it you're you seem to be saying well even if we're not suggesting anybody want to say now it's not just the wife so you're asking for an expansion was dismissed on the pleadings we'll hold this is again how can it not be an expansion you say we're not asking for it for leave those facts are it's the wife and of people evil couper says expressly don't worry about policy concerns because we're talking about the life how can it not be an expansion for you to say don't focus on the legal marital relationship which is what you're asking us right i'm asking this court respectfully to read for what i think it stands for which is that it happened to have been a spouse in that situation but the admonition of the oliva the supreme court of new jersey is not to be stop simply on regal status and that every was saying don't get bound up with old fashioned notions of invitee rice and see trespasser we're not talking about that anymore we've got beyond that here in new jersey i'm i'm struggling with one thing and one thing only and that is when the supreme court of new jersey is that pains to say at the very end of its opinion it's closing words don't worry about this getting too broad we're talking about the wife so it's foreseeable even if the rationale of all only of all could reasonably be taken to go beyond the wife for the reasons you're describing isn't  just as a matter of plain black and white on the page that it's going beyond a legal right to say it's not just the wife your honor i think that one could look at it with with narrow blinders and read the word  the clear language of a revoke is that there shouldn't be a bright line test but instead courts must look at factors so she hears the logical extension of reading or leave oh as your honor i think maybe looking at it is had been married and they had two children and this happens in real life with really trust me on this because i represented these families and you had a spouse that got chronic william disease and a child or two children and i don't think anybody on this panel is telling you we've made up our mind there's a bright light past what we're trying to get you to grapple with is that you are going beyond a revolt terms now it may be that the logic of the ego is such that it makes sense to extend it to other members of the household we're not weird i'm certainly not trying to pay him wondering or another i want my thinking on short what i am trying to do it and they'd know it's minute and addressing of the consequences of this does step past where we are when because it didn't have to go past life and it said it's the wife don't worry about it and then that raises the question well if we go past that are we the ones to go past that and if we are how would we state a living rule those are the things we know that i have perhaps in our family been trying to get you to grapple with and and to try to  he was their girlfriend during that period of time before they got married and after they got married he work for art what was it the other company is not working with your impression and i think this court respect for the room i think respectfully this court can do one of two things i think yri vs tomkins absolutely empowers you to make a predictive statement about the scope of a legal i do but i'm also aware of the jurisprudence in this and every circuit in this country is restrained i believe you can render an opinion remanding this case back to the district court with instructions to to do what we vote and burtis require courts to do one applying new jersey alleged complain are doing to be true that you didn't and make no mistake about it i believe that the district court absolutely could have if it if it applied the appropriate standard under rule twelve and taking all the facts be true and looking for any view of those facts that would support a finding in our favor i think the district court could have concluded that but to the extent there was any uncertainty about the elements of a leave out meaning the fairness of the east for example we did we didn't plead how easy it would have been for them to q were to take home exposure if the court were inclined to to get facts on that in order to rule whether the duty extended what about another to confine a defendant's exposure to liability by addressing it's just a question of the risk this seems to be the new jersey court saying and saying again the lid really hate all you people out there don't panic we're not trying to throw the gates open to everybody it's we're we're talkin nero foreseeable set of agree and the question is how it's formulated we're not throwing it out in to anyone outside of life that's the interpretation of this district  to mean not just the wife but someone as it says else when you opinion someone like her or someone like her that's the language of the day use so if if it's if we read a case and we say well you know what you could read that case to be a little broader than the right we're not and whether you really need to be broader or not that's a pretty important public policy question so should we give it to me new jersey supreme court to decide that were should we bake a prediction about how the new jersey supreme court would read and apply only well with all due respect judge to it i think it goes beyond that because this court would be acting as a judicial pioneer what he's asking for i no state court has ever deterrence he's asking for the take on liability to be applied to not only a spouse ok but other state courts have addressed family members within the household but it still exposed to employees over an extended period of time this court would be predicting that the state of new jersey wants to be a trailblazer when the majority of the courts tha have decided the issue of take on liability have basically determined that there is no take home i really believe it was not so sure you're right that the majority of courts have you know there's a lot there are several cases there are several cases that each side can and have cited to us but without count them up which i haven't done this point i'm going to try to get one last time you to respond to my question i think what you're saying if i understand right is there's only one way to relieve zero and if we were to and so there's no reason to certify this because no person could rationally riedel be able to meet anything except spouse and only styles but i got you that that's that's the answer the here is what we do with it you know it's not a question is whether under new jersey law an employer has a duty to a roommate and or a non co habiting girlfriend or boyfriend of the employee to protect him or her from take  doing the things that are our spouse like ok if we accept those facts as true and we accept that we have to craft a rule that's going to have application beyond the schwarz's but the question then remains doesn't this implicate policy questions about what's foreseeable or not in th in today's society in new jersey and if it if it implicates those policy questions isn't that something that is going to require a decision that takes us afforded to recognizing a duty to a new class of individuals that are and gary or kate and who are just merely roommates should be the province of the new jersey supreme court because new jersey supreme court or the new jersey legislature should of policy call on this record i mean you could certainly make the argument you could definitely make the argument that that's a new jersey legislature responsibility but the new jersey supreme court having made the decision that it was going to your employer so your statement about policy concerns prostate want to ask you with the time we've got left on the clock here about analytically whether we're talking about the duty or proximate cause here there's language  the ultimate injury goes on to say here we're focusing on the determination of the duty and then it says once that belief or see harm to a particular individual has been established other considerations of fairness and policy govern whether the imposition of a dut warranted i take that to mean herb and maybe i'm reading too much into it but the court is saying we recognise a duty here and then we're going to put a process because of break on it and say  because in this circumstance don't get worried all you people about under restraint liability as a matter of possum it costs we're talking here about and the way they put it is the spouse ok so the question i'm putting to you were not put to your colleagues here and then it is is if as we look at this and we try to analyze it is what you're putting before us right now a question of whether there's a duty to brandish words there whether the duty described is out there and just policy concerns proximate causation should prompt this to say no it doesn't go past the dictated that the fairness inquiry must involve weighing and balancing several factors including the fall of the relationship of the parties we've talked about that at length year and the district court considered that factor and only that factor lever says you have to consider the nature of the attendant risk you have to consider the opportunity an ability to exercise care and for the public interest in the proposed solution even here's the challenge when you say the district we're going to look at those other things even if everyone were to assume that every one of those things are in your favor both those other ones sites relationship we would still have to wrestle with the district court would with the relationship issue right i mean that's the key question and that's why we've spent here talking for a good long time almost exclusively about the relationship and how far you go past just everything just give you everything other than that but your honor if you if this panel were to decide and it's completely within your power to do this to say we are sitting in diversity read o line will be drawn courts do that all the time and i think the jurors credential a sensitive thing to do is to follow the lead that the supreme court in new jersey has given us o that you're not willing to say you know what this implicates important public policy issues that are under the law of the state in new jersey and new jersey and i have to run the audit make the call if they very weighty i make i make no light of the fact that this decision that you that you will make will be looked at and read by employers as well as individuals like mrs schwartz whose inner fi whose tethered to an oxygen machine who will almost surely have a premature death from having been exposed to a brewery and brought home on the clothes of her husband when he brought in the facility that had zero zero environmental controls the public policy of new jersey screams for this court to rule for this case to remain in play and to not have an unduly restrictive reading of the leave out which is not required so it doesn't matter does the you know is it just too go out of its way to say for c bill that he has two roles duty and proximate cause which is a policy break and then spend some of its time talking about the policy break although it never refers to rare or unusual that the risk can be viewed as very finite and the ability to cure it very hard but that's not what we have here and unfortunately the district court never weighed those factors that impacts spoke of duty and i think if the district court had look at those who had looked at those factors either from the war had it sought and i think standard factual record in order to define scope of duty it would have found easily the tennessee supreme court the maryland supreme court has found that the student should extend to any household member and the cases you say are children reading at home well respectfully judge perry some of them are and i throw this out because the district court didn't really address this at more frankly does opposing counsel in his brief but two sources here are not only the boyfriend subsequent husband but the roommate recall that for three were married in eighty and then for three plus solid year she did the laundry of both of these gentlemen he learned from she lived with roommates their howls well only it's half well so one of the things that we've assessed to look at is the nature of the risk is potentially enormous or not before we can trust the district courts and the truck courts of america with wisdom from the appellate court in applying the standards that are here we can and a benchmarks and criteria that i think are highly manageable the courts in our federal and state systems do every day we can in week out i've been doing it for thirty five years and court succeeded in doing it the only error we assign here with with respect to both of the district court judges remember the issue first came up on our motion to remain and this was relegated to a footnote where nothing more than the legal status of mrs schwarz in one thousand seven hundred seventy nine with the you can send this back respectfully with a rematch say look at all of the illegal factors that determine the scope of duty because this panel sitting with an eerie prism has decided that  the in the toxic area say that as as best as can be next to brilliant and the reason they make that that dark joke is that really impound for pound inch for inch is the most toxic substance earth it's it's unusual though because it's immunologically mediated meaning it works like an allergy you can have a worker who can work with massive quantities for thirty years and never contract it and you could have someone like mr s month or more of of exposure but it's not it's not a dose response relationship it's not like cigarettes where the more you smoke the more likely you are to get sick or as fast as it's  medical and scientific literature is replete with case studies of people like mrs schwartz like children at home you can't have passed that you can't have for example a dinner guest and like we have them contract c b d you have to have regular exposure so that's a that's an internally limiting factor in the science here and can agree it may be one of the things that the district court should look at in determining still because the nature of the toxic element need to find a reason for the reasons i've already said for the other is to is to actually render an eerie prediction about what the new jersey court meant or is likely to mean given given all of the common law new jersey that  stands for the proposition that household members are perfect period that isn't a moving fact i think that's the other thing that this panel can do not there if i were sitting in rows i would choose i would choose path for the court oh i agree i'm not disagreeing but i'm saying for the court to determine the stop of the duty it has to weigh elements of fairness and i read to you rep the more elements were and all i'm saying is that our district court here didn't get the opportunity to do that if it does it can then render a legal judgment about scope of duty and respectfully that's what the district courts are there to do and it's this is not an instance where the new jersey supreme court either ha spoke about rife because those were the facts of the rebbe but it's i think rather eloquently about the idea of not getting stuck in legal status of individuals to determine if it duty attaches and it gives us a a pathway and criteria to look at and all i'm asking on behalf of the schwarz's is that you rob the district court to apply all of the elements and give an opportunity to define scope all right