In re New York City Asbestos Litigation

• Decision Date: 27 October 2005
• Citation: 840 N.E.2d 115,5 N.Y.3d 486
• Parties: In the Matter of NEW YORK CITY ASBESTOS LITIGATION. Elizabeth Holdampf et al., Respondents, v. A.C. & S., Inc., et al., Defendants, and Port Authority of New York And New Jersey, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 115

840 N.E.2d 115

5 N.Y.3d 486

In the Matter of NEW YORK CITY ASBESTOS LITIGATION Elizabeth Holdampf et al., Respondents, v. A.C. & S., Inc., et al., Defendants, and Port Authority of New York And New Jersey, Appellant.

Court of Appeals of New York.

October 27, 2005.

Segal McCambridge Singer & Mahoney, Ltd., New York City (Christian H. Gannon, Dwight A. Kern and Robert R. Rigolosi of counsel), for appellant.

Weitz & Luxenberg, P.C., New York City (Erik Jacobs and Stephen J. Riegel of counsel), for respondents.

Shook, Hardy & Bacon, L.L.P., Washington, D.C. (Victor E. Schwartz and Mark A. Behrens of counsel), Crowell & Moring LLP, Washington, D.C. (Paul W. Kalish and Mark D. Plevin of counsel), Karen R. Harned, Washington, D.C., Donald D. Evans, Arlington, Virginia, Ann W. Spragens and Robert J. Hurns, Des Plaines, Illinois, and Robin S. Conrad and Amar D. Sarwal, Washington, D.C., for Coalition for Litigation Justice, Inc., and others, amici curiae.

Michaels & Smolak, P.C., Auburn (Michael G. Bersani of counsel), for Asbestos Disease Awareness Organization and others, amici curiae.

OPINION OF THE COURT

READ, J.

We are asked to decide whether the Port Authority of New York and New Jersey (Port Authority) owes a duty of care to plaintiff wife, who was allegedly injured from exposure to asbestos dust that plaintiff husband, a Port Authority employee, introduced into the family home on soiled work clothes that plaintiff wife laundered. We conclude that there is no duty of care.

I.

Plaintiff John Holdampf was employed by the Port Authority from 1960 to 1996 in various blue-collar positions, working at one time or another in most of the Port Authority's 26 locations. Over the course of his 36-year job tenure, he handled asbestos-containing products. The Port Authority issued five uniforms to John Holdampf and offered a laundry service: soiled uniforms placed in a designated stationary cabinet at the workplace were sent offsite for cleaning. About half of the time, however, he opted to bring dirty work clothes home for cleaning for reasons of "[c]onvenience" and because there were no showers available at work.

John Holdampf married plaintiff Elizabeth Holdampf in 1971. As relevant to this appeal, Elizabeth Holdampf testified at her deposition that her husband told her sometime in the 1970s that he handled asbestos at work, and that she was consequently exposed to asbestos when she washed her husband's soiled uniforms.¹ Elizabeth Holdampf was diagnosed with mesothelioma² in August 2001.

Plaintiffs sued to recover for injuries allegedly caused by exposure to asbestos and asbestos-containing products and/or equipment and materials, naming asbestos manufacturers or suppliers as defendants. On January 4, 2002, plaintiffs filed a second amended complaint, which added the Port Authority as a defendant.

The second amended complaint, which incorporates plaintiffs' attorneys' "Amended Standard Asbestos Complaint for Personal Injury No. 6," sets out seven causes of action — six claims for direct injury sounding in negligence, breach of warranty, products liability, enterprise liability, and violations of Labor Law §§ 200 and 241(6), and one derivative claim for loss of services and consortium. The first cause of action, which is at issue on this appeal, alleges that defendants "negligently failed to warn and failed to provide adequate instructions of any potentially safer handling methods which should have been utilized by users, handlers, or other persons who were reasonably and foreseeably known to come into contact with the asbestos-containing products and/or equipment and materials."

On December 4, 2002, the Port Authority moved for summary judgment to dismiss the complaint,³ arguing that Elizabeth Holdampf could not recover for direct injuries because exposure to her husband's work clothes at the family home was "not connected to [her] employment at any Port Authority site." The Port Authority relied on Widera v. Ettco Wire & Cable Corp. (204 A.D.2d 306, 611 N.Y.S.2d 569 [2d Dept. 1994], lv. denied 85 N.Y.2d 804, 626 N.Y.S.2d 755, 650 N.E.2d 414 [1995] [infant plaintiff may not recover in negligence from father's employer due to injury caused by in utero exposure to toxic chemicals father brought home on his work clothes because employer owes no duty to individuals who are not employees]).

In response, plaintiffs argued that Elizabeth Holdampf was exposed to asbestos that the Port Authority "negligently permitted to leave its sites," and that the Port Authority owes a duty to protect nonemployees from exposure to asbestos. Plaintiffs cited two cases to support their position. The first case, Baker v. Vanderbilt Co., 260 A.D.2d 750, 688 N.Y.S.2d 726 [3d Dept. 1999] [no appeal], distinguished Widera and found that a mine operator can owe a duty to third parties allegedly injured off the mining site by exposure to airborne asbestos-containing talc. The Court relied on 53A Am. Jur. 2d, Mines and Minerals § 339 ("mining activities will be found to create a nuisance if they cause excessive smoke, fumes, or dust, resulting in damage to crops and vegetation or discomfort to neighboring residents") and 85 N.Y. Jur. 2d, Premises Liability § 270 (addressing a landowner's violation of a statute or regulation). The second case cited by plaintiffs, Kowalski v. Goodyear Tire & Rubber Co. (841 F.Supp. 104 [W.D.N.Y.1994] [manufacturer of tires owed duty to employee's spouse who allegedly became ill with cancer after exposure to tire chemicals on husband's work clothes]), is a pre-Widera decision of a federal court interpreting New York law. Plaintiffs provided documentary evidence to show that the Port Authority knew, as early as 1969 when it was building the World Trade Center, that the spraying of asbestos fireproofing during construction presented a risk of harm to "bystanders."

On January 16, 2003, Supreme Court granted the Port Authority's motion for summary judgment in a one-sentence short-form order, "based on [the] Widera case and absence of duty to plaintiff." On December 2, 2004, the Appellate Division modified Supreme Court's order by reinstating plaintiffs' first cause of action in common-law negligence because the Port Authority, which relied "almost exclusively on the Widera rationale that an employer owes no duty of care to nonemployees outside the workplace" (14 A.D.3d 112, 116, 786 N.Y.S.2d 26 [1st Dept. 2004]), thereby "failed to demonstrate a lack of duty as a matter of law" (id. at 121 n. 2, 786 N.Y.S.2d 26).

In reaching this conclusion, the Appellate Division distinguished Widera "because it involved the unique question of a tortfeasor's liability to an infant for injuries occurring while in utero" (id. at 117, 611 N.Y.S.2d 569); grounded the Port Authority's duty on its status as a landowner; defined the scope of the Port Authority's duty by reference to decisions in other jurisdictions that have held manufacturers and suppliers of asbestos products liable to injured third parties;⁴ and limited its holding to "members of each employee's household who were exposed at home to asbestos dust from an employee's workplace clothes, by washing the clothes or otherwise" (id. at 122, 611 N.Y.S.2d 569). The Appellate Division subsequently granted leave and certified the following question to us: "Was the order of [the Appellate Division], which modified the order of the Supreme Court, properly made?"

II.

As we recently stated in Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] "[t]he threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff? Courts traditionally fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. Thus, in determining whether a duty exists, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree" (citations and internal quotation marks omitted).

Further, "[f]oreseeability, alone, does not define duty — it merely determines the scope of the duty once it is determined to exist" (id.; see also Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019 [1976], rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640 [1977] ["Foreseeability should not be confused with duty. The principle expressed in Palsgraf v. Long Is. R.R. Co.... is applicable to determine the scope of duty — only after it has been determined that there is a duty"]). A specific duty is required because otherwise, a defendant would be subjected "to limitless liability to an indeterminate class of persons conceivably injured" by its negligent acts (Hamilton, 96 N.Y.2d at 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [citation and quotation marks omitted]). "Moreover, any extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs" (id.).

Hamilton also emphasizes our reluctance to extend liability to a defendant for failure to control the conduct of others. "This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another" (id. at 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055). Generally, such a duty may arise only

"where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant's actual control of the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others. Examples of these relationships include master and servant,...