Acevedo v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 28 June 1991
• Citation: 572 N.Y.S.2d 1015,151 Misc.2d 347
• Parties: Nelson ACEVEDO, et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and the City of New York, Defendants.
• Court: New York Supreme Court

Page 1015

572 N.Y.S.2d 1015

151 Misc.2d 347

Nelson ACEVEDO, et al., Plaintiffs, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and the City of New York, Defendants.

Supreme Court, New York County.

June 28, 1991.

Lewis, Greenwald, Kennedy, Clifton & Schwartz, P.C., New York City (Arthur Schwartz, of counsel), for plaintiffs.

Richard W. Babinecz, New York City (Geraldine O'Donnel, of counsel), for defendant Consol. Edison Co.

HERMAN CAHN, Justice.

This action raises the issue of how to adequately protect individuals exposed to extremely toxic substances but who suffer no present physical disability. Due to the nature of such substances, for example asbestos, no clinical symptoms of disease may manifest themselves for many years or even decades, if ever. Requiring such individuals to postpone commencing suit until they show signs of clinical disease is not, in the view of the Court, a just result. Accordingly, the Court here recognizes the right for claimed victims of toxic torts to seek the cost of continuous medical monitoring necessary to allow the early detection of disease. Such detection may increase the efficiency of medical treatment or minimize pain and suffering.

The Allegations of the Complaint

The relevant part of the complaint alleges the following facts: On August 19, 1990, at 20th Street between Irving Place and Third Avenue in Manhattan, a Consolidated Edison Company of New York, Inc. (Con Edison) steam pipe, covered with insulating material containing toxic friable asbestos, exploded, spewing insulation throughout the area. Two Con Edison employees were killed in the explosion. Con Edison knew that the resulting debris contained toxic levels of friable asbestos but nevertheless dispatched the employee plaintiffs to perform tasks associated with the clean-up of the explosion. During their work, employee plaintiffs were exposed to and inhaled or ingested toxic levels of friable asbestos fibers. Con Edison did not provide plaintiff employees with protective clothing or equipment; it did not warn employee plaintiffs of the potential dangers of exposure to friable asbestos.

Plaintiff employees allege that, although they are not presently disabled or suffering from disease, they are at serious risk of developing asbestos related disease in the future. Accordingly, they seek, in the first cause of action, continued medical monitoring, damages for emotional distress "upon the realization that they will require lifetime medical monitoring" and damages for battery for intentionally and knowingly exposing them to the asbestos. The third cause of action alleges public nuisance, causing the need for continued medical monitoring and emotional distress. The fourth cause of action seeks damages for intentional infliction of emotional distress.

Defendant Con Edison moves for partial summary judgment dismissing that part of the complaint asserted against it by its employees. Con Edison seeks to dismiss all of the employee-plaintiffs' claims as barred by the Workers' Compensation Law ("WCL") § 11.

Additional causes of action are alleged by the spouses and other family members of the employee-plaintiffs. Such causes of action are not considered on this motion.

The Law

WCL § 10(1) provides in relevant part that "Every employer ... shall ... secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of or in the course of the employment without regard to fault ...". WCL § 11 provides in relevant part that "The liability of an employer prescribed by the last preceding section shall be exclusive and in the place of any liability whatsoever...."

The Courts have recognized a narrow exception to the exclusivity of the WCL where the injury results from an intentional tort perpetrated by or at the direction of the employer. (Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64; Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; Estupinan v. Cleanerama Drive-In Cleaners, Inc., 38 A.D.2d 353, 329 N.Y.S.2d 448). Under this exception, mere knowledge and appreciation of risk are not the same as intent to cause injury; but the complaint must allege an intentional or deliberate act by the employer aimed at causing harm to that particular employee. (Finch v. Swingly, supra; Mylroie v. GAF, Corp., 81 A.D.2d 994, 440 N.Y.S.2d 67; Bardere v. Zafir, 102 A.D.2d 422, 477 N.Y.S.2d 131, aff'd 63 N.Y.2d 850, 482 N.Y.S.2d 261, 472 N.E.2d 37). "The conduct must be engaged in with the desire to bring about the consequences of the act." (Finch v. Swingly, supra 42 A.D.2d at 1035, 348 N.Y.S.2d 266).

Plaintiff-employees in their causes of action seeking damages for battery and emotional distress have failed to sufficiently allege more than gross or reckless conduct by defendant, in allowing plaintiff-employees to be exposed to friable asbestos particles while Con Edison was aware of the risks. (See, Burlew v. American Mutual Ins. Co., 63 N.Y.2d 412, 482 N.Y.S.2d 720, 472 N.E.2d 682; Ferrara v. American ACMI, 122 A.D.2d 930, 505 N.Y.S.2d 964; Hodson v. General Electric Company, 129 A.D.2d 978, 514 N.Y.S.2d 665). The Courts have recently held in two similar cases that knowledge of a known chemical or environmental hazard is not by itself conduct that is excepted from the exclusive remedy provision of WCL § 11. (Briggs v. PYMM Thermometer, 147 A.D.2d 433, 537 N.Y.S.2d 553; Rider v. Occidental Chemical Corp., Index No. H-87792, 4/21/89 (Sup.Ct. Erie Cty., Kane, J.), aff'd 155 A.D.2d 944, 548 N.Y.S.2d 1014, lv. to app. denied 75 N.Y.2d 705, 552 N.Y.S.2d 928, 552 N.E.2d 176).

Plaintiff-employees, however, argue that their claims are for injuries that are not recognized as compensable under the WCL because they suffer from no present physical disability. This contention is without merit with regard to the claims for emotional distress and battery. Psychological injury caused by psychic trauma is compensable to the same extent as physical injury under the WCL. (Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, 369 N.Y.S.2d 637, 330 N.E.2d 603; Kaliski v. Fairchild Republic Co., 151 A.D.2d 867, 542 N.Y.S.2d 841, aff'd 76 N.Y.2d 1002, 564 N.Y.S.2d 714, 565 N.E.2d 1265). In any event, recovery for emotional distress is not available under the common-law until there is clinical evidence of an asbestos related condition now present. (Herber v. Johns-Manville Corp., 785 F.2d 79 (3rd Cir.1986); Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir.1988); Rittenhouse v. St. Regis Hotel Joint Venture et al., 149 Misc.2d 452, 565 N.Y.S.2d 365). Therefore, those claims alleging emotional distress and battery are dismissed.

However, that part of the complaint that alleges a need for continued medical monitoring does not seek recovery for an injury compensable under the WCL. Pursuant to WCL § 10 only an injury which causes "disability" is compensable. WCL § 37(1) defines "disability" as the "state of being disabled from earning full wages at the work at which the employee was last employed." The need for medical monitoring is therefore not a compensable injury since there is no present disability. It follows that since the condition requiring continuous medical monitoring is not an...