Dole v. Dow Chemical Co.
| Citation | 316 N.Y.S.2d 348,35 A.D.2d 149 |
| Parties | Bernice E. DOLE, Individually and as Administratrix of Ralph L. Dole, Deceased, Plaintiff, v. The DOW CHEMICAL COMPANY, Defendant. The DOW CHEMICAL COMPANY, Third-Party Plaintiff-Respondent, v. McLEOD INDUSTRIAL FUMIGATORS & CITY EXTERMINATORS, INC., Third-PartyDefendants, and George Urban Milling Co., Third-Party Defendant-Appellant. |
| Decision Date | 29 October 1970 |
| Court | New York Supreme Court — Appellate Division |
Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, for third-party defendant-appellant (George M. Gibson, Buffalo, of counsel).
Saperston, Wiltse, Duke, Day & Wilson, Buffalo, for third-party plaintiff-respondent (Warren S. Radler, Buffalo, of counsel).
Before GOLDMAN, P.J., and MARSH, WITMER, GABRIELLI and MOULE, JJ.
In an action by plaintiff Dole to recover damages from The Dow Chemical Company (Dow) for the death of plaintiff's intestate, on the ground of Dow's alleged negligence, Dow served a third party summons and complaint upon two corporations, to wit, McLeod Industrial Fumigators & City Exterminators, Inc. (McLeod) and George Urban Milling Company (Urban), demanding judgment for any amount which plaintiff may recover against Dow, on the ground of their active negligence in causing the death of plaintiff's intestate. Urban moved at Special Term for dismissal of the third party complaint as against it upon the ground that in the original action Dow was charged with active negligence and so is not entitled to maintain a third party action against Urban; and this appeal is from the denial of that motion.
In the original complaint plaintiff alleges that Dow manufactures and sells containers of highly dangerous and deadly poison (methyl bromide) for use in the control of insects in storage areas; that Urban obtained some of that product for such use at its plant and so used it; and that while cleaning a bin with such product for Urban and at Urban's instructions, plaintiff's intestate suffered exposure to the gas, resulting in his death. The plaintiff alleges that this death resulted from Dow's negligence,
'* * * in manufacturing and producing a highly poisonous substance or chemical; in placing the same upon the market and in the hands of ultimate consumers without properly labelling the containers in which said poisonous substance was placed so as to warn ultimate consumers of the dangers of same; in failing to warn and instruct the ultimate consumers by lable on the container of the poisonous substance that entry into an enclosure previously fumigated by said substance without a gas mask designed for protection against organic vapors would result in harm, injury or death; in failing to warn and instruct by label or otherwise that excessive usage or over-does of the said poisonous substance in enclosed structure must ultimately be followed-up with methods designed to dissipate vapors resulting from the said poisonous substance; in failing to warn and instruct by label or otherwise of the proper time interval necessary to transpire between use of the same poisonous substance in an enclosed area and the time when any human being could thereafter safely enter enclosed structure, * * *'.
In its third party complaint as against Urban, Dow alleges that plaintiff Dole claims in the original complaint that the intestate's death was caused by Dow's negligence as above quoted; that prior to such accident Dow sold to McLeod quantities of said methyl bromide in cans bearing labels with appropriate instructions for its use and that McLeod sold some of the product, so labelled, to Urban; that prior to the accident Dow furnished to both McLeon and Urban, and they had access to, printed literature with respect to fumigating premises with such material; that having such information Urban undertook through its agents and employees to fumigate its premises; that if plaintiff's intestate's death resulted from negligent use of said product apart from decedent's own negligence, it was McLeod's and Urban's...
To continue reading
Request your trial
-
Dole v. Dow Chemical Co.
...Special Term to dismiss the third-party complaint as to it. This motion was denied. On Urban's appeal, the Appellate Division, 35 A.D.2d 149, 316 N.Y.S.2d 348 unanimously reversed and dismissed that pleading on the ground liability over would not be allowed if the plaintiff established that......
-
Gleason v. Holman Contract Warehousing, Inc.
...to compare the opinion rendered by the Court of Appeals in reversing the decision rendered by the Appellate Division, 35 A.D.2d 149, 316 N.Y.S.2d 348 (1970), with said opinion rendered by the Appellate Division.5 Note the similarity of this situation to the situation created by the new "Omn......
-
Beaumont v. Warner & Swasey Co.
...Co., 2 A.D.2d 191, 192, 153 N.Y.S.2d 763, 764, affd. 2 N.Y.2d 898, 161 N.Y.S.2d 149, 141 N.E.2d 632; Dole v. Dow Chem. Co., 35 A.D.2d 149, 151--152, 316 N.Y.S.2d 348, 351, 352; La Rosa v. Edward J. Furhmann Co., Inc., supra; and Scivetti v. Niagara Mohawk Power Corp., 33 A.D.2d 884, 307 N.Y......
-
Glomboski v. Baltimore & Ohio Railroad
...me is essentially the same as the one the Appellate Division dismissed, using the same reasoning it used in Dole v. Dow Chem. Co., 35 A.D.2d 149, 331 N.Y.S.2d 387, 282 N.E.2d 292, which the Court of Appeals It is true that the third-party complaint here does not set out a cause of action fo......