Barnett v. City of Yonkers

• Decision Date: 08 February 1990
• Docket Number: No. 87 Civ. 5401 (JFK).,87 Civ. 5401 (JFK).
• Citation: 731 F. Supp. 594
• Parties: Diane BARNETT, Individually and as Administratrix of the Estate of Richard Barnett, M.D., Plaintiff, v. The CITY OF YONKERS and The Board of Education of the City of Yonkers, United States Gypsum Company, U.S. Mineral Products, The Celotex Corporation, Stuart Mueller Associates, Inc., and Eli Rabineau, Defendants.
• Court: U.S. District Court — Southern District of New York

731 F. Supp. 594

Diane BARNETT, Individually and as Administratrix of the Estate of Richard Barnett, M.D., Plaintiff, v. The CITY OF YONKERS and The Board of Education of the City of Yonkers, United States Gypsum Company, U.S. Mineral Products, The Celotex Corporation, Stuart Mueller Associates, Inc., and Eli Rabineau, Defendants.

No. 87 Civ. 5401 (JFK).

United States District Court, S.D. New York.

February 8, 1990.

Levy Phillips & Konigsberg, New York City (Stanley J. Levy and Janet M. Delohery, of counsel), for plaintiff.

J. Radley Herold, Corp. Counsel, Yonkers, N.Y. (Michell H. Klemperer, of counsel), for defendant City of Yonkers.

Anderson, Banks, Moore, Curran & Hollis, Mount Kisco, N.Y. (James P. Drohan, of counsel), for defendant Bd. of Educ. of City of Yonkers.

Anderson Kill Olick & Oshinsky, New York City (Judith A. Yavitz and Frank S. Occhipinti, of counsel), for defendant U.S. Gypsum Co.

Walker, Walker & Kapiloff, New York City (Edward N. Walker and Daniel S. Wohlfarth, of counsel), for defendant Eli Rabineau.

Bernstein, Weiss, Coplan, Weinstein & Lake, New York City (Norman Coplan, of counsel), for amici curiae The American Institute of Architects and The N.Y. State Ass'n of Architects, Inc.

Norman H. Gross, Counsel to the N.Y. State School Boards Ass'n, Albany, N.Y. (Henry F. Sobota, of counsel), for amicus curiae N.Y. State School Boards Ass'n.

OPINION AND ORDER

KEENAN, District Judge.

BACKGROUND

Plaintiff in this wrongful death and loss of services, society and consortium action alleges that plaintiff's decedent's death was caused by exposure to friable asbestos while decedent was a student at Walt Whitman Junior High School in Yonkers (the "school") between 1967 and 1970. This case differs from the typical asbestos-related lawsuit in that plaintiff has not sued asbestos millers, manufacturers or distributors. Here, plaintiff has named the City of Yonkers and its Board of Education (the "Board") as defendants, claiming that these municipal entities failed to exercise reasonable care in learning of the hazards of asbestos when the school was constructed and while it was maintained.

On September 30, 1988 Judge Charles P. Sifton of the Eastern District of New York, as supervisor of the Joint Southern/Eastern District Asbestos Litigation, granted the Board permission to join additional parties as defendants pursuant to Fed.R.Civ.P. 19(a). The United States Gypsum Company ("Gypsum") and Eli Rabineau, an architect involved in the school's construction, are among the additional defendants. The Board has filed a cross-claim for contribution and/or indemnification against each of the additional defendants. The lawsuit is presently before this Court on several motions. The City of Yonkers and the Board have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant Gypsum has cross-moved pursuant to Fed.R.Civ.P. 12(b)(2) and 56 for dismissal of the Board's cross-claim and pursuant to Fed.R.Civ.P. 11 for sanctions against the Board. Defendant Rabineau also cross-moves for summary judgment against the Board.

FACTS

The Walt Whitman Junior High School in Yonkers was built in 1959 and remained open until 1982 when the Westchester Commissioner of Health ordered the school's closing because the asbestos health hazard had become critical. Plaintiff's decedent attended the school between 1967 and 1970. Plaintiff maintains that by 1967 asbestos which had been sprayed-on portions of the school's ceilings began to fall in flakes and chunks in the classrooms. Plaintiff contends that decedent's exposure to asbestos at the school caused him to contract mesothelioma, an always-fatal cancer of the lining of the lung, which caused decedent's death in 1986.

Although the parties are unable to locate a copy of the contract between Rabineau and the Board relative to the design and construction of the school, Rabineau recalls that he was commissioned by the Board to design the school in July, 1956. See Rabineau Aff., ¶ 5. It is undisputed that the plans and specifications developed by Rabineau for the school called for the use of sprayed-on asbestos. Rabineau asserts that, to the best of his recollection, sprayed-on asbestos was applied only "to the cafeteria (dining area) and certain absorptive portions of the ceiling in the auditorium." Id. at ¶ 8.

Rabineau submits that the use of asbestos-containing products in the construction of schools was the generally accepted practice of the architectural profession in the late 1950's and indeed was not even questioned until the mid-1970's. Moreover, all plans and specifications for school facilities in New York State must be approved by the Bureau of Facilities Planning of the New York State Education Department. The Bureau of Facilities Planning approved the use of sprayed-on asbestos in schools until 1979.

Guided by Rabineau's plans, construction of the school commenced in 1958 and was completed in time for the commencement of the Fall, 1959 term. Upon issuing a certificate of completion, Rabineau's obligations under his contract with the Board were satisfied. The contract did not provide for any continuing duty to maintain the school on Rabineau's part, and no express warranties were included in the contract.

A significant portion of the parties' submissions is devoted to establishing the progression of knowledge of the risks presented by exposure to asbestos. The Board relies heavily on legislative findings and governmental agency reports to buttress its contention that it could not reasonably have known of the dangers of asbestos-exposure to students in asbestos-containing schools through 1970.

It is undisputed that no federal or state safety standard banning or regulating the use of asbestos in buildings was in effect before 1973, when the federal Environmental Protection Agency ("EPA") issued a ban on the use of sprayed-on asbestos materials. See 38 Fed.Reg. 8,826 (1973). In 1979, New York State introduced asbestos legislation in the School Asbestos Safety Act of 1979. The legislative findings and purposes statement which accompanies the statute notes that:

"substantial amounts of asbestos materials were used throughout school buildings during the period from nineteen hundred forty-six to nineteen hundred seventy-two for fireproofing, soundproofing, decorative and other purposes."

New York State Education Law, § 431(1)(a) McKinney's 1988.

Similarly, in enacting the Asbestos School Hazard Detection and Control Act, 20 U.S.C. §§ 3601 et seq. ("Asbestos Act"), Congress found that:

"during the period 1946 to 1972, asbestos materials, particularly in sprayed form, were used extensively in the construction and renovation of school buildings for fireproofing, insulation, acoustical, and decorative purposes."

S.Rep. No. 710, 96th Cong., 2d Sess. 3, reprinted in 1980 U.S.Code Cong. & Admin.News 1426, 1428.

In the Asbestos Act, Congress directed the Attorney General of the United States to ascertain the feasibility of recovering "from any person determined" to be liable the costs of detecting, removing, and replacing asbestos materials from school buildings. 20 U.S.C. § 3607(b). In accordance with this mandate, the Attorney General issued the "Attorney General's Asbestos Liability Report to the Congress" in 1981 ("Attorney General's Report"). The Attorney General's background findings regarding the widespread use of asbestos in schools "through the early 1970's" is consistent with the above findings the Board adduces. See Attorney General's Report at p. 9. The Report also notes that while the EPA banned the use of sprayed-on asbestos-containing materials with greater than 1% asbestos composition for insulation and fire-proofing purposes in 1973, it did not expand the ban to encompass spraying for decorative purposes until 1978.

The uncontroverted testimony of Board officials establishes that the Board first received actual notice of the hazards posed by friable asbestos from the New York State Education Department between April 1, 1976 and January, 1977. See Grosso Aff., Garofalo Aff. Moreover, the Chief of the New York State Education Department's Bureau of Facilities Planning avers that it was only "immediately prior to February '77 that" the Department notified school districts of the potential dangers of asbestos in school buildings.

The facts pertaining to the issue of Rabineau's actual notice of the hazards associated with asbestos are concisely presented in the uncontradicted affidavit of Frederic G. Wiedersum:

"During the period 1955-1973 the potential hazard to those occupying buildings wherein asbestos containing materials were incorporated was simply unknown to either architects or engineers. Even in the early 1970's, when the potential health hazard among asbestos industry workers and installers became known, risk to the public at large was simply unforeseen."

Wiedersum Aff. ¶ 4. In its task of establishing Rabineau's constructive knowledge, the Board is placed in the troublesome position of arguing that while it could not reasonably have been aware of the hazards of asbestos during the relevant period, Rabineau could have. Not surprisingly, the Board does not pursue this argument with much vigor.

In an effort to create a triable issue of fact with respect to the constructive notice of defendants, plaintiff adduces twelve newspaper articles and two magazine articles which she asserts demonstrate the availability of information concerning the risks of asbestos during the relevant period. Of the fourteen articles submitted by plaintiff, three were published after the decedent graduated from the school, seven were published while he was enrolled at the school, and none was published before or while the school was being built. See Pl't'ff's Exh. C. Each of the articles appears in a non-technical, generally circulated publication such as The New York Times in 1964, The Wall Street Journal in 1968, and The New Yorker also in 1968. The...