NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 4002

_____________ BRENDA ANN SCHWARTZ; PAUL GRANT SCHWARTZ, Appellants

v. ACCURATUS CORPORATION, In Its Own Right And As Successor In Interest to Accura tus Ceramic Corporation; MATERION BRUSH INC., C/O CT Corporation System

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 1 2

- c v - 6189 ) District Judge: Hon. Jeffrey L. Schmehl

____________ ___ Argued April 2 2 , 2015 Before: CHAGARES , JORDAN, and BARRY , Circuit Judges

.

(Filed July 22, 2016 )
Ruben Honik, Esq. (Argued) Golomb & Honik 1515 Market Street Suite 1100 Philadelphia, PA 19107 Attorney for Appe llants2

A. Wesley Bridges, Esq. Jo seph G. Harraka, Jr., Esq. (Argued) Becker Meisel 220 Lake Drive East Woodland Falls Corporate Center, Suite 102 Cherry Hill, NJ 08002 Attorney s for Appell ee

_______________ OPINION 

_______________

JORDAN, Circuit Judge

. On June 22 , 2015, a panel of this Court submitted a Petition for Certification of Question of State Law to the New Jersey Supreme Court, asking that Court to accept for certification the following question of law: “Does the premises liability rule set forth in Olivo v. Owens

- Illin ois, Inc. , 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?” On Ju ly 30, 2015, the New Jersey Supreme Court graciously agreed to consider the certified question, and, on July 6, 2016, rendered its unanimous decision. See Schwartz v. Accuratus Corp. , 2016 WL 3606026 , -- A.3d

-- (N.J. July 6, 2016). The opinion of the Ne w Jersey Supreme Court observed, among other things, that

“ Olivo does not suggest that the duty recognized must re main static for all future cases ...

 This disposition is not an opinion of the full C ourt and, pursuant to I.O.P. 5.7, does not constitute binding precedent.3

and that take

- home toxic

- tort liability must remain limited to a spouse handling take

home toxins.” (Slip Op. at 14 (original emphasis) .) The Court further recognized that

“ 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 l iability on some definition of ‘hou sehold’ member, or even on the basis of biological or familial relationships.” ( Id

. at 15 (original emphasis) .) The Court emphasized that “a duty was found to exist in Olivo based on the foreseeability of regular and close contact with the contaminated m aterial (the dangerous condition) over an extended period of time , ” and not based only upon one’s role as a spouse or family member . ( Id . at 11.) In that Court’s view, the scope of any duty of care in take

- home toxic

- tort liability cases instead turns on “ a refined analysis for particularized risk, foreseeability, and fairness ,” staying cognizant of the “paramount importance of foreseeability.” ( Id . at 16.) Because “[t]ort law is built on case

- by

- case development based on the facts presented by individu al cases , ” ( id . at 13) , and “because of the idiosyncratic nature of most ... interactions with a take

- home toxin , ” ( id . at 15), the Court held that it could not “define the contours of the duty owed to others in a take

- home toxic

- tort action through a certif ied question of law , ” ( id . at 16). Instead, it set forth “[c] ertain factors [ that ] will be important as such cases present themselves.” ( Id . at 17.) Those include (1) “t he relationship of the parties,” including “ an assessment not only of the relationsh ip 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 ”; (2) “the opportunity for exposure to the dangerous substance and the nature of the expos ure that causes the4

risk of injury ”; and (3) “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 .” ( Id .) The Court also noted that, “[i]n a non

strict

- liability negligence action, the dangerousness of the toxin, how it causes injury, and the reasonable precautions to protect against a particular toxin are relevant in identifying a foreseeable duty by a landowner for off

- pr emises exposure of dangerous toxins. ” ( Id . at 17

- 18.)
T he New Jersey Supreme Court determined that it could not “create an abstract bright

- line rule ... as to ‘who’s in and who’s out’ on a negligence

- based take

- home toxic

tort cause of action based on Ol ivo or any previous decision[, ]” and thus it held that its
response to our question would “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.” ( Id . at 18 .) It further instructed that the assessment of whether the duty should extend in any particular case “should take into account a weighing of the factors” it had identified, “to determine whether the foreseeability, fairness, and predictability concerns” that were earlier described in Hopkins v. Fox & Lazo Realtors , 625 A.2d 1110 (N.J. 1993), “should lead to the conclusion that a duty of care should be recognized under common law.” (Slip Op. at 18.) Given that helpful direction, we will vacate in part th e decision of the District Court (as to the issue appealed ) and will remand this matter to the District Court for further proceedings consistent with this opinion and the opinion of the New Jersey Supreme Court in response to our Petition for Cer tification

.