Dole v. Dow Chemical Co.

CourtNew York Court of Appeals
Writing for the CourtBERGAN; FULD, C.J., and BREITEL, JASEN and GIBSON, JJ., concur with BERGAN
Citation282 N.E.2d 288,331 N.Y.S.2d 382,30 N.Y.2d 143
Decision Date22 March 1972
Parties, 282 N.E.2d 288, 53 A.L.R.3d 175 Bernice E. DOLE, Individually and as Administratrix of the Estate of Ralph L. Dole, Deceased, Plaintiff, v. DOW CHEMICAL COMPANY, Defendant and Third-Party Plaintiff-Appellant, McLEOD INDUSTRIAL FUMIGATORS & CITY EXTERMINATORS, INC., Third-Party Defendant, and GEORGE URBAN MILLING CO., Third-Party Defendant-Respondent.

Page 382

331 N.Y.S.2d 382
30 N.Y.2d 143, 282 N.E.2d 288, 53
A.L.R.3d 175
Bernice E. DOLE, Individually and as Administratrix of the
Estate of Ralph L. Dole, Deceased, Plaintiff,
v.
DOW CHEMICAL COMPANY, Defendant and Third-Party
Plaintiff-Appellant, McLEOD INDUSTRIAL FUMIGATORS & CITY
EXTERMINATORS, INC., Third-Party Defendant, and GEORGE URBAN
MILLING CO., Third-Party Defendant-Respondent.
Court of Appeals of New York.
March 22, 1972.

Page 384

[282 N.E.2d 290] [30 N.Y.2d 144] Warren S. Radler, Buffalo, for appellant.

[30 N.Y.2d 145] George M. Gibson, Buffalo, for respondent.

BERGAN, Judge.

Appellant Dow Chemical Company is defendant in an action for negligently causing the death of plaintiff's husband, and it is third-party plaintiff in a claim over against the husband's employer George Urban Milling Company. Another claim over by appellant against McLeod Industrial Fumigators & City Exterminators, Inc. is not involved in this appeal.

Dow is the manufacturer of chemicals. It produced methyl bromide, a penetrating and poisonous fumigant used for control[30 N.Y.2d 146] of storage insects and mites. This product is labeled by Dow as poisonous,

Page 385

dangerous and highly volatile. Urban used it to fumigate a grain storage bin and shortly after fumigation it directed plaintiff's husband, its employee, to enter the fumigated bin to clean it. In doing this he was exposed to the poison which resulted in his death.

The negligence charged to Dow by plaintiff is that the poison was not properly labeled to warn users of its dangers; in failing to warn and instruct users that entry without protection into an enclosed area where the poison had been employed would be dangerous; and in failing to warn that use in an enclosed structure should be followed by effective dissipation of vapors or the lapse of time enough to allow dissipation.

Dow's answer to the complaint is both a denial of its own negligence and an allegation of affirmative negligence by decedent. Its third-party complaint against George Urban Milling Company alleges that the methyl bromide used by Urban was properly labeled with full warning of its dangerous nature; that it had furnished Urban with printed material relating to its use in fumigation and that Urban had access to and was aware of this material.

From this it is alleged by Dow that if decedent's death was caused by negligence it was the result of the 'active and primary negligence' of Urban and the negligence of Dow 'if any' was 'merely passive and secondary'.

The negligence of Urban is alleged by Dow to have been its improper precautions in fumigating with methyl bromide; in using for this work untrained personnel; in failing to follow instructions on the label and the literature available to it; in failing to test the premises after fumigation and to properly aerate it afterward. If plaintiff recovers Dow asks judgment over against Urban 'for the full amount of such judgment'.

Urban moved at 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 Dow's negligence in mislabeling and insufficient warning contributed to the accident.

[282 N.E.2d 291] This would be, the court noted, 'active negligence of a character which would bar Dow from recovery against the user of [30 N.Y.2d 147] the product' even though the user also was negligent. That view is consistent with decisions of this court (e.g., Jackson v. Associated Dry Goods Corp., 13 N.Y.2d 112, 116, 242 N.Y.S.2d 210, 213, 192 N.E.2d 167, 169; Colon v. Board of Educ. of City of N.Y., 11 N.Y.2d 446, 451, 230 N.Y.S.2d 697, 702, 184 N.E.2d 294, 297; Bush Term. Bldgs. Co. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 430, 214 N.Y.S.2d 428, 430, 174 N.E.2d 516, 517 et

Page 386

seq.; Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691; McFall v. Compagnie Mar. Belge, 304 N.Y. 314, 329--330, 107 N.E.2d 463, 471--472).

The 'active-passive' test to determine when indemnification will be allowed by one party held liable for negligence against another negligent party has in practice proven elusive and difficult of fair application. The terms 'primary' and 'secondary' negligence, also used in the Dow pleading, have been regarded as more accurate and technically appropriate.

But the policy problem involves more than terminology. If indemnification is allowed at all among joint tort-feasors, the important resulting question is how ultimate responsibility should be distributed. There are situations when the facts would in fairness warrant what Dow here seeks--passing on to Urban all responsibility that may be imposed on Dow for negligence, a traditional full indemnification. There are circumstances where the facts would not, by the same test of fairness, warrant passing on to a third party any of the liability imposed. There are circumstances which would justify apportionment of responsibility between third-party plaintiff and third-party defendant, in effect a partial indemnification.

The basic theoretical bar at common law to any apportionment among those who committed torts, either by indemnity or by contribution, was the unwillingness of the law as a matter of policy to make relative value judgments of degrees of culpability among wrongdoers (42 C.J.S. Indemnity, § 27 subd. a, p. 606). The rule springs from the celebrated decision in Merryweather v. Nixan (8 Durn. & E. 186; 101 Eng.Rep. 1337 (K.B., 1799)). (See Reath, Contribution Between Persons Jointly Charged for Negligence--Merryweather v. Nixan, 12 Harv.L.Rev. 176--178; and note as to subsequent British and American treatment of the rule in 65 Col.L.Rev. 123, Toward A Workable Rule of Contribution, n. 2; and Allocation of Loss, 41 So.Cal.L.Rev. 728, 730; and see general discussion by Prosser, The Law of Torts (4th ed.), addressed to contribution, indemnity and apportionment of damages, §§ 50, 51, 52.)

[30 N.Y.2d 148] Consistently with this theory at common law, the wrongdoer selected by the injured party for suit must have succeeded in avoiding any part of responsibility; and otherwise he would have to assume all of it without redress. This doctrine no longer is applied rigorously. For one thing the statute has altered the basic policy against contribution by allowing one joint tort-feasor subjected to judgment, to compel equal contribution by another who is subjected to the same judgment (CPLR 1401).

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The effective application of this statute depends, however, on the adjudication of joint tort responsibility which, as a matter of practice, depends in turn largely on the willingness or ability of the injured party to sue more than one of those responsible for his damage (see discussion of this aspect of the problem in Putvin v. Buffalo Elec. Co., 5 N.Y.2d p. 453, 186 N.Y.S.2d p. 19, 158 N.E.2d p. 694, Supra).

The 'active-passive' negligence concept as it has developed in New...

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661 practice notes
  • Mar–Cone Appliance Parts Co. v. Mangan, No. 10–CV–999A.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 20 Julio 2012
    ...as a defendant) (citing Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974, 980 (1977)). See also Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) (chemical manufacturer permitted to implead employer despite workers compensation bar preventing pl......
  • Reger v. National Ass'n of Bedding Mfrs. Group Ins. Trust Fund
    • United States
    • New York Supreme Court
    • 4 Junio 1975
    ...(Siskind v. Levy, 13 A.D.2d 538, 213 N.Y.S.2d 379; Weidman v. Sibley, 16 App.Div. 616, 44 N.Y.S. 1057) despite Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (Liebman v. County of Westchester, 71 Misc.2d 997, 1007 (n. 11), 337 N.Y.S.2d 164, 176 (n. 11), r'v'd other g......
  • People ex rel. Dept. of Transportation v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 10 Abril 1980
    ...at p. 193, 578 P.2d at p. 910.) Noting that a recent decision of the New York Court of Appeals, Dole v. Dow Chemical Company (1972) 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 had demonstrated that "the common law was capable of evolving the equitable indemnity doctrine into a rule whic......
  • Alumax Mill Products, Inc. v. Congress Financial Corp., No. 89-5014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 31 Agosto 1990
    ...the Minnesota Supreme Court in Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362, 367-68 (Minn.1977). Accord Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268 (1972); see genera......
  • Request a trial to view additional results
662 cases
  • Mar–Cone Appliance Parts Co. v. Mangan, No. 10–CV–999A.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 20 Julio 2012
    ...as a defendant) (citing Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974, 980 (1977)). See also Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972) (chemical manufacturer permitted to implead employer despite workers compensation bar preventing pl......
  • Reger v. National Ass'n of Bedding Mfrs. Group Ins. Trust Fund
    • United States
    • New York Supreme Court
    • 4 Junio 1975
    ...(Siskind v. Levy, 13 A.D.2d 538, 213 N.Y.S.2d 379; Weidman v. Sibley, 16 App.Div. 616, 44 N.Y.S. 1057) despite Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (Liebman v. County of Westchester, 71 Misc.2d 997, 1007 (n. 11), 337 N.Y.S.2d 164, 176 (n. 11), r'v'd other g......
  • People ex rel. Dept. of Transportation v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 10 Abril 1980
    ...at p. 193, 578 P.2d at p. 910.) Noting that a recent decision of the New York Court of Appeals, Dole v. Dow Chemical Company (1972) 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 had demonstrated that "the common law was capable of evolving the equitable indemnity doctrine into a rule whic......
  • Alumax Mill Products, Inc. v. Congress Financial Corp., No. 89-5014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 31 Agosto 1990
    ...the Minnesota Supreme Court in Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362, 367-68 (Minn.1977). Accord Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Pachowitz v. Milwaukee & Suburban Transport Corp., 56 Wis.2d 383, 202 N.W.2d 268 (1972); see genera......
  • Request a trial to view additional results

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