In this case, it is alleged that the decedent, John Casey, was exposed to asbestos while working as a plumber for Rodoni-Becker Co., Inc. from 1968-69 during the construction of the Crocker Plaza Building. On the jobsite, the decedent worked near employees from Lera Electric Company who were allegedly disturbing asbestos fireproofing while installing electrical materials. Lera moved for, and was granted, summary judgment on the plaintiff’s negligent claim on the ground that it “did not owe a duty of care to decedent. Defendant argued that the undisputed facts establish that when the work was performed in the late 1960’s its employees did not know and should not have known they were disturbing asbestos containing material in decedent’s presence. In the face of an unforeseeable injury, defendant asserted, there can be no duty and, therefore, no negligence.”

On appeal, the plaintiffs maintained that Lera “knew or should have known that exposure to significant amounts of occupational dust generally poses a risk to those exposed to the dust and that decedent’s injury resulted from his exposure to that dust. Therefore, plaintiffs argue, defendant owed a duty of care to exercise reasonable care to protect Casey from that risk.” In support of their argument, the plaintiffs had submitted the declaration of Richard Cohen, M.D., as an expert on occupational medicine and industrial toxicology. Dr. Cohen relied on and provided a detailed history of safety reports and opined that “by the 1960’s a company, working in construction and on jobsites where contractors and laborers were working alike, should have been aware of potential health hazards associated with exposure to certain occupational dusts generally.”

The court agreed, reversed the lower court’s ruling, and held: “In conclusion, the safety orders imposed a duty upon defendant to control or isolate dust produced in quantities giving rise to harmful exposure for part if not all of the relevant time period. A triable issue of fact exists as to whether the dust created by defendant’s conduct exceeded the maximum threshold levels set by the safety orders. Because summary judgment was erroneously granted on the ground that defendant’s unawareness of the presence of asbestos negated its duty to avoid generating excessive levels of industrial dust, we must reverse the judgment and remand the action for further proceedings. We of course express no opinion on the numerous issues that remain for determination, including the factual questions of the content and quantities of the dust generated by defendant’s work at the jobsite in question, whether defendant was negligent in failing to take reasonable protective measures, causation of Casey’s injuries and damages.”

Read the full decision here.

If you have questions about how this decision may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups