Guadagno v. Baltimore & Ohio R. Co.

• Decision Date: 15 November 1989
• Docket Number: No. 1,1
• Citation: 155 A.D.2d 981,548 N.Y.S.2d 966
• Court: New York Supreme Court — Appellate Division
• Parties: John GUADAGNO, Respondent, v. BALTIMORE & OHIO RAILROAD COMPANY, L.C.P. Chemicals & Plastics, Inc., Appellants, And Third-party Actions. (Appeal)

Page 966

548 N.Y.S.2d 966

155 A.D.2d 981

John GUADAGNO, Respondent, v. BALTIMORE & OHIO RAILROAD COMPANY, L.C.P. Chemicals &

Plastics, Inc., Appellants, And Third-party

Actions. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

Nov. 15, 1989.

Moot & Sprague by Harry Mooney, Buffalo, for appellant, Baltimore & Ohio R. Co.

Cohen & Lombardo, P.C. by Robert Convisar, Buffalo, for appellant, L.C.P. Chemicals & Plastics, Inc.

Paul William Beltz, P.C. by Robert Nichols, Buffalo, for respondent.

Before DILLON, P.J., and CALLAHAN, GREEN, PINE and DAVIS, JJ.

MEMORANDUM:

Plaintiff, a policeman, was allegedly injured by exposure to methyl chloride in connection with a train derailment in the Town of Hamburg on October 31, 1981. He supervised evacuation in the morning and was present as a liaison with the cleanup crew later in the day. During an attempt to stabilize a derailed tank car, the car fell to the ground, releasing methyl chloride.

Supreme Court correctly denied defendants' motion for summary judgment dismissing the complaint. 142 Misc. 2d 712, 538 N.Y.S.2d 386. While Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770 bars a claim for negligence in causing the derailment, it does not preclude a claim for negligently failing to warn plaintiff of the hazard (see, Benjamin v. Sodus Cold Stor. Co., 149 A.D.2d 937, 540 N.Y.S.2d 70). With respect to the hazard caused by dropping the car, the Fireman's Rule is inapplicable because that alleged negligence was not the reason plaintiff was on the scene.

There is no merit to plaintiff's contention that General Municipal Law § 205-e applies to this case. Although remedial, it is not retroactive because there is no clear expression of legislative intent to so apply it (see, Matter of Deutsch v. Catherwood, 31 N.Y.2d 487, 489-490, 341 N.Y.S.2d 600, 294 N.E.2d 193) and it creates a cause of action which did not previously exist (see, Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 453, 261 N.Y.S.2d 8, 209 N.E.2d 68, cert denied sub nom., Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158).

Following the denial of their motion for summary judgment, defendants moved for partial summary judgment to limit plaintiff's claim to injuries from exposure to methyl chloride when the tank car fell. Plaintiff was unwilling to stipulate that that was the only time he was exposed and injured because he feared that defendants would...