Governor Phil Murphy announced changes to the stay-at-home order this week, loosening restrictions on indoor and outdoor gatherings. 

Executive Order 152 permits indoor gatherings of up to 50 people or 25% of building capacity, provided people wear masks and stand six feet apart.  Outdoor gatherings are also permitted with up to 100 people.  The governor indicated that limits on outdoor gatherings might increase to 250 people by June 22 and 500 by July 3.

Perhaps most notably, the Executive Order permits gatherings in excess of 100 people “for First Amendment-protected outdoor activities” such as protests and religious events.

The governor was under some pressure to reconcile his existing Executive Order 148, which had prohibited gatherings of more than 25 people, with his participation in protests in Westfield and Hillside.  In addition to violating his own executive order, his violations took place over the same weekend where organizers received citations for protesting the ongoing shutdown.

Governor Murphy initially sought to distinguish between the two protests, pointing to the historical significance of the protests that he was attending, and disparaging the value of the protests for reopening commercial activity.  “It’s one thing to protest what day nail salons are opening and it’s another to come out in peaceful protest overwhelmingly about somebody who was murdered right before our eyes,” he claimed. 

Alas, the First Amendment recognizes no such distinction.  Asked about the citations against a tennis center owner in Randolph, Murphy said he had “no insights” into that.  But having effectively admitted that he was holding expressive activity to different standards, turning on the content of the message, something had to give. 

Assemblyman Jay Webber reinforced the point with a widely shared letter to the State Police Superintendent, urging him to take action on the violations: “As you yourself have warned, ‘because lives are at stake, enforcement action will be taken without hesitation against those who are blatantly placing the lives of others at risk.’”  The Assemblyman’s letter put a fine point on the need for “fair and consistent enforcement of our laws.”

The result is some significant loosening of restrictions on a shorter timeline than had been indicated as recently last week.  Outdoor dining at restaurants may resume, and with continued good weather, we are likely to see religious services move outside and resume regular schedules and unlimited attendance. 

All of this is encouraging.  But it also brings to mind the pending legislation – S2380/A3999 – which would create a presumption that anyone working at “essential” businesses who develop COVID-19 are presumed to have caught the virus on the job.  We have always pointed out that whatever the merits of such an assumption when we have all largely been confined to our homes, a legal presumption of infection on the job would become more difficult to justify once the economy began to reopen.  And watching this activity resume – in the coverage of people interacting in close proximity at protests and other events – is to watch the justification for a workplace presumption fall away.  We hope legislators in the Assembly, where this bill has yet to move, are watching and recognizing the same phenomenon. 

The New Jersey Supreme Court decision in Henry Sanchez v. Fitness Factory Edgewater, LLC, has clarified the application of the Retail Installment Sales Act (RISA). The Court reversed the Appellate Division panel below, which had found that “to fall within RISA’s purview, a contract for the sale of goods or services must involve financing.  The decision also overturns a previous Appellate Division decision in Mellet v. Aquasid, which had held that RISA applies only to contracts involving an “ownership interest in an object or service.” 

Writing for a unanimous court, Justice Fernandez-Vina explained that the text of the statute does not limit the scope to contracts that include financing arrangements, or to sales involving an “ownership interest” in goods or services.

The decision had the effect of extending the application of the RISA statute, along with potential liability provided by the statute.  But it also highlighted the flaws in the “purposive” analysis that had caused the lower courts to depart from the text of the statute.  As Justice Fernandez-Vina explained, “our first step in interpreting a statute is to look to the actual words of the statute, giving them their ordinary and commonsense meaning.”

The Mellet court found that “health club members are not in the category of consumers RISA is designed to protect.”  The prior appellate division decision emphasized that the purpose of RISA was to regulate “the charges associated with the time sale of goods.”  The Department of Banking and Insurance (DOBI) had argued as amicus that “installment contracts charging no interest pose very little risk to consumers and, thus, do not require RISA’s protections.” 

No matter.  The text of the statute itself includes no such limitations.  Apart from certain express exclusions – services covered by the “Home Repair Financing Act,” and insurance premiums financing – the statute applies generally to contracts involving installment payments. 

The decision should serve as a useful reminder that the legislature and governor do not enact intent.  They enact the words that make up the statute, and we can expect the courts to give full effect to the meaning of those words.  Assurances that “no one” is seeking to extend the statute to practices or parties outside the scope of legislators’ particular intent are worthless and should be treated as such.

The New Jersey Supreme Court extended the scope of liability for asbestos this week, in the case of Whelan v. Armstrong International, Inc.  It was another step in the ongoing search for solvent defendants with capacity to pay for asbestos-related injuries, now including manufacturers who concededly had not manufactured the asbestos causing plaintiff’s injury.  The decision was authored by Justice Albin, and countered by a dissent by Justice Patterson, joined by Justice Fernandez-Vina.

The Court considered the responsibility of manufacturers of parts containing asbestos components, where those asbestos parts had been replaced at some point with asbestos parts produced by other, unknown manufacturers. 

There was agreement that the manufacturer had a duty to warn of the potential danger, both for their own product and replacement parts.  But the Court was divided on the question of medical causation – whether a manufacturer could be liable “for injuries from equipment (the asbestos insulation) that they did not make, sell or distribute.” 

Justice Albin explained that the extended duty to warn was consistent with “our developing common law jurisprudence, guided by principles of public policy and equity.”  Where defendants “manufacture or distribute products that, by their design, require the replacement of asbestos-containing components with other asbestos-containing components during the ordinary life of the product” they have a duty to give “adequate warnings to the ultimate user.”

The Court further held that for strict liability purposes, the product at issue is “the aggregation of all its component parts.”  “No distinction is made between the original asbestos-containing components and the asbestos-containing replacement components necessary for the continued operation of defendants’ integrated products—even though the replacement components are manufactured or distributed by a third party.”

Justice Patterson objected to the conflation of the duty to warn with the separate element of medical causation.  In her dissent, she wrote that the majority’s decision constituted “an unwarranted change in the longstanding standard for the medical causation element of an asbestos failure to warn claim.”

Justice Patterson emphasized that New Jersey’s common law has a well-established two-part test for causation in a toxic-tort claim based on an alleged failure to warn.  The plaintiff must first establish “product-defect causation” – that the product “was defective for some reason, the reason in occupational exposure cases usually being failure to warn, and that the defect caused harm.”  And, critically, the plaintiff must also prove “medical causation – that the plaintiff’s injuries were proximately caused by exposure to the defendant’s product.”  The second component of the causation requirement, she wrote, was lacking where the asbestos component had been replaced by a part produced by another manufacturer.  Liability should extend “only to those defendants to whose products the plaintiff can demonstrate he or she was intensely exposed.”

The decision follows a US Supreme Court decision from last year, where a divided Court considered the question of “duty to warn” for purposes of federal common law for maritime law purposes.  There, Justice Kavanaugh wrote the majority opinion finding that a manufacturer of a “bare metal” part that was known to require an asbestos component had a duty to warn. Consistent with the “Restatement of Torts,” a manufacturer has a duty to warn if it “knows or has reason to know’ that the product ‘is or is likely to be dangerous for the use for which it is supplied.” 

Justice Gorsuch wrote for the dissent, objecting to the duty to warn as applied to “bare metal” manufacturers but noting that “there’s a colorable argument that their responsibility didn’t end when the Navy, as part of routine upkeep, swapped out the original asbestos parts for replacements supplied by others.

Under traditional tort principles, he wrote, “the seller of a defective, ‘unreasonably dangerous’ product may be liable to an injured user if the product is expected to and does reach the user without substantial change in the condition in which it is sold.” He added that “replacing worn-out parts every now and then with equivalently dangerous third-party parts may not qualify as a ‘substantial change’ if the replacement part does ‘no more than perpetuate’ problems latent in the original.” He emphasized, however, that the Court’s analysis does “not purport to define the proper tort rule outside of the maritime context.” 

It remains to be seen how the holding in this case might affect the causation analysis both in future asbestos litigation and in non-asbestos toxic tort claims.  Justice Patterson’s warning that the holding “disincentives litigants from undertaking the product-identification discovery…that could reveal the identity of the replacement part’s actual manufacturer” is certainly of concern.  The weakening of the medical causation requirement, potentially opening the door to a sort of “enterprise liability,” even more so.