Briggs v. Pymm Thermometer Corp.

• Decision Date: 06 February 1989
• Citation: 537 N.Y.S.2d 553,147 A.D.2d 433
• Parties: Shirley BRIGGS, et al., Appellants v. PYMM THERMOMETER CORPORATION, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 553

537 N.Y.S.2d 553

147 A.D.2d 433

Shirley BRIGGS, et al., Appellants v. PYMM THERMOMETER CORPORATION, Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Feb. 6, 1989.

Louis R. Rosenthal, Brooklyn (John M. Leventhal and Rheingold & McGowan [Paul Rheingold], of counsel), for appellants.

Raymond C. Green, New York City (Howard A. Feldman, on the brief), for respondent.

Before MANGANO, J.P., and BROWN, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rader, J.), dated August 3, 1987, as granted the motion of the defendant Pymm Thermometer Corporation to dismiss the complaint as against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The instant action was commenced by the plaintiffs, former employees of the defendant Pymm Thermometer Corporation (hereinafter Pymm), to recover damages for injuries allegedly suffered as a result of their exposure to mercury, cleaning fluids and solvents which were used at Pymm's plant in Brooklyn. In the first cause of action of the complaint, the plaintiffs alleged that the injuries were caused by "the negligence of the defendant, Pymm". In the second cause of action of the complaint, the plaintiffs alleged that Pymm had violated certain provisions of the Labor Law of this State. The second cause of action also alleged the following:

"FIFTY-SIXTH: That defendant PYMM's, failure to comply with the relevant statutory directives, set forth above, constituted a fraudulent concealment and deceptive inducement to plaintiffs to work, and to continue working, in an environment which defendant, PYMM, knew to be unsafe and detrimental to the health and well-being of the plaintiffs referred to above.

"FIFTY-SEVENTH: That the conduct and advice of defendant, PYMM, was false, fraudulent and misleading and was known to be false, fraudulent and misleading by defendant, PYMM, when uttered and given with the intent to deceive the plaintiffs and to have plaintiffs rely upon them and plaintiffs entered into, and continued, said employment relying upon defendant, PYMM's, statements, representations and omissions to their damage and detriment.

"FIFTY-EIGHTH: That pursuant to said fraudulent scheme and device, defendant, PYMM, warranted and represented that it maintained a safe, healthy and legal place to work knowing such warrantees [sic], statements, representations and omissions were false and fraudulent when made, intending that plaintiffs would rely thereon, which plaintiffs did, to their damage.

"FIFTY-NINTH: At all times herein mentioned, defendant, PYMM, was aware that its place of business was unsafe, unhealthy and illegal.

"SIXTIETH: At all times herein mentioned, defendant, PYMM, was aware of, yet willfully concealed, misrepresented, misinformed, deceived, and failed to disclose to the plaintiffs that defendant's place of business was unsafe, unhealthy and illegal."

Pymm moved to dismiss the complaint on the ground that it was barred by the Workers' Compensation Law.

In opposition to the motion to dismiss the complaint, the plaintiffs argued that they had pleaded an intentional tort in their complaint and therefore, that cause of action was not barred by the defense of the Workers' Compensation Law. Specifically, the plaintiffs argued:

"11. The sum of those allegations is that PYMM's conduct was fraudulent and intentional, that PYMM knew each plaintiff would sustain injuries while working in the toxically dangerous factory but fraudulently and intentionally withheld that information from each worker and, further, fraudulently and intentionally induced the workers to continue to work at the factory as a direct consequence of which 'each plaintiff' sustained egregious injuries. In essence, then, the second cause of action, when liberally construed and interpreted most favorably to plaintiffs, asserted a viable cause of action based on intentional, fraudulent acts by PYMM directed at causing harm to each employee.

"Stated somewhat differently, PYMM knew of the extremely dangerous ongoing conditions at the factory and also knew that any employee with a modicum of common sense would have immediately quit if made aware of those conditions, PYMM also had to be fully cognizant that, if even one employee became aware of the dangerous conditions, all employees would in all probability have been rapidly alerted to their dangerous working conditions, thereby resulting in PYMM losing its work force and being faced with a costly removal of the hazardous conditions at the factory."

The Supreme Court granted Pymm's motion to dismiss the complaint as against it. We agree with the determination of the Supreme Court.

It is well settled that an employee cannot maintain a common-law tort action against his employer for injuries sustained in the course of his employment, since such incidents are covered by the Workers'...