Dole v. Dow Chemical Co.

Decision Date22 March 1972
Citation282 N.E.2d 288,331 N.Y.S.2d 382,30 N.Y.2d 143
CourtNew York Court of Appeals Court of Appeals
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.

Warren S. Radler, Buffalo, for appellant.

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 of storage insects and mites. This product is labeled by Dow as poisonous 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.

This would be, the court noted, 'active negligence of a character which would bar Dow from recovery against the user of 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 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.)

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).

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 York is itself an abandonment of the rigorous common-law policy; since it allows full indemnity in favor of one found to be passively negligent against another found to be actively negligent who could be brought into the action by the passively negligent party and required to answer the claim over.

This process in practical application became a measure of degree of differential culpability, although the degree was a large one. The 'passive' negligent act was treated by the court as less a wrong than the 'active' negligent act. The result has been that there has in fact emerged from the statutory change and from the judicial decisions an actual apportionment among those who participate responsibly in actionable torts.

This change in concept and the persistent criticism of the active-passive basis of apportioning liability between defendants found responsible in negligence make it useful for the court to re-examine the basic fairness of the uncertain and largely unpredictable nature of the measure of redress that has been allowed by indemnity in favor of a party found negligent against another who played an effective role in causing the damage.

The conclusion reached is that where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party. To reach that end there must necessarily be an apportionment of responsibility in negligence between those parties.

The adjudication is one of fact and may be sought in a separate action (cf. Westchester Light. Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567) or as a separate and distinguishable issue by bringing in the third party in the prime action pursuant to CPLR 1007.

The procedural mechanism allowing a defendant to bring in a third party who may be liable to him on 'all or part' of the plaintiff's claim (CPLR 1007, substantially taken from former Civ.Prac.Act, § 193--a, subd. 1) was limited in Fox v. Western N.Y. Motor Lines, 257 N.Y. 305, 178 N.E. 289, virtually to exclude the right of one charged with negligence to bring in another in a claim over. This was on the basis of the inability of one cast in damages to seek recovery over from another as a matter of law.

But Westchester Light. Co. v. Westchester County Small Estates Corp. (278 N.Y. 175, 15 N.E.2d 567, Supra) overruled the substantive basis of Fox by holding that such a claim for indemnity could be asserted in a separate action after judgment, and in a series of other cases the right to some form of relief over has been sustained, including the theory of implied obligation to indemnify (McFall v. Compagnie Mar. Belge, 304 N.Y. 314, 328, 107 N.E.2d 463, 471, Supra), or breach of duty (p. 329, 107 N.E.2d p. 471), or the absence of a Participes criminis relationship (Tipaldi v. Riverside Mem. Chapel, 273 App.Div. 414, 418, 78 N.Y.S.2d 12, 16, affd. 298 N.Y. 686, 82 N.E.2d 585).

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