Ivory v. Int'l Bus. Machs. Corp.

• Decision Date: 20 February 2014
• Citation: 2014 N.Y. Slip Op. 01230,983 N.Y.S.2d 110,116 A.D.3d 121
• Parties: Thomas H. IVORY et al., Appellants–Respondents, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 121

983 N.Y.S.2d 110

2014 N.Y. Slip Op. 01230

Thomas H. IVORY et al., Appellants–Respondents,

v.INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent–Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 20, 2014.

Faraci Lange, LLP, Rochester (Stephen G. Schwarz of counsel) and Levene, Gouldin & Thompson, LLP, Vestal (Phillip C. Johnson of counsel) and Williams Cuker & Berezofsky, Philadelphia, Pennsylvania (Gerald J. Williams of counsel) and Weitz & Luxenberg, PC, New York City (Ellen Relkin of counsel), for appellants-respondents.

Jones Day, New York City (Mary Ellen Powers of counsel, Washington, DC, admitted pro hac vice), for respondent-appellant.

Before: PETERS, P.J., STEIN, McCARTHY and GARRY, JJ.

McCARTHY, J.

(1) Cross appeals from three orders of the Supreme Court (Lebous, J.), entered January 16, 2013 in Broome County, which partially granted defendant's motions for partial summary judgment dismissing certain causes of action, (2) appeal from two orders of said court, entered January 16, 2013 in Broome County, which granted defendant's motions for partial summary judgment dismissing certain causes of action, and (3) appeal from the judgment entered upon said orders.

Defendant owned a machine manufacturing facility in the Village of Endicott, Broome County between 1924 and 2002. From 1935 through the mid–1980s, defendant used the chemical trichloroethylene (hereinafter TCE) to clean metal parts in degreasers and in the production of circuit cards and boards. In 1979, defendant discovered that solvents, including TCE, had pooled in the groundwater beneath the facility and the contaminated groundwater appeared to be migrating. Defendant began remedial efforts, which have been ongoing. In 2002, defendant began investigating whether vapor intrusion—a process in which chemicals volatilize out of contaminated groundwater and then migrate as vapors through the pores in the subsurface and into structures on the surface—was taking place in Endicott as a result of contaminated groundwater that originated at defendant's facility. Defendant was required by the Department of EnvironmentalConservation and the Department of Health to offer ventilation systems to owners of homes in certain areas in which TCE was detected and traceable to groundwater contamination.

In 2008, defendant was the subject of a class action alleging causes of action for negligence, private nuisance and trespass and seeking, among other things, medical monitoring damages. Following extensive disclosure, the claims of two families were severed from the class action to be tried first. Out of the seven instant plaintiffs,¹ plaintiff Thomas H. Ivory and plaintiff Timothy Ivory each allege that they have developed cancer—non-Hodgkin's lymphoma and kidney cancer, respectively—as a result of TCE exposure; the other five plaintiffs allege that, although they were exposed to significant levels of TCE, they do not presently have any physical manifestations of injury related to TCE. All of the plaintiffs except Thomas H. Ivory seek medical monitoring damages in connection with their negligence or other claims.

Defendant separately moved for, among other things, summary judgment dismissing the claims for negligence, trespass, private nuisance, medical monitoring damages, and exposure to chemicals other than TCE and exposure to TCE at locations other than plaintiffs' homes. Supreme Court fully granted defendant's motions regarding medical monitoring damages and other chemicals and locations, and partially denied each of the other three motions. Supreme Court issued five orders and one judgment. Plaintiffs appeal from all five orders and the judgment and defendant cross-appeals from three of the orders.

Supreme Court properly granted defendant summary judgment dismissing plaintiffs' claims related to TCE exposure at locations other than their homes.² While “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship,” an expert must establish causation through a method that is “generally accepted in the scientific community” ( Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ).³ Here, plaintiffs' experts provided calculations related to exposure at two locations, the family homes of Thomas H. Ivory and plaintiff Grace Odom, where those plaintiffs raised their respective children. As no expert provided “a scientific expression of [any plaintiff's] exposure level” at any other location, the court correctly precluded proof at trial regarding exposure at other locations, as such assertions would be speculative and not scientifically supported ( id. at 449, 824 N.Y.S.2d 584, 857 N.E.2d 1114;compare Jackson v. Nutmeg Tech., Inc., 43 A.D.3d 599, 602, 842 N.Y.S.2d 588 [2007] ).

*127 Supreme Court did not err in denying defendant's motion for summary judgment dismissing the negligence claims of Thomas H. Ivory and Timothy Ivory. “[I]n cases involving the pollution of underground waters, the plaintiff must demonstrate that the defendant failed to exercise due care in conducting the allegedly polluting activity” ( Fetter v. DeCamp, 195 A.D.2d 771, 773, 600 N.Y.S.2d 340 [1993] ). “Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent” ( Sanchez v. State of New York, 99 N.Y.2d 247, 252, 754 N.Y.S.2d 621, 784 N.E.2d 675 [2002] [citation omitted] ). Expert testimony is necessary to prove a deviation from accepted standards of care and establish proximate cause “unless the matter is one which is within the experience and observation of the ordinary juror” ( Lyons v. McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375 [1998],lv. denied92 N.Y.2d 814, 681 N.Y.S.2d 475, 704 N.E.2d 228 [1998] ). “The statements of defendant's experts that defendant ‘comported with industry standards [do] not establish as a matter of law that [defendant] was not negligent’ ” ( Baity v. General Elec. Co., 86 A.D.3d 948, 951, 927 N.Y.S.2d 492 [2011], quoting Gardner v. Honda Motor Co., 214 A.D.2d 1024, 1024, 627 N.Y.S.2d 492 [1995] ), as an industry standard may fail to meet the appropriate standard of care. While some of the information regarding the standard of care here may have been outside the common knowledge of average jurors ( see Koehler v. Schwartz, 48 N.Y.2d 807, 808–809, 424 N.Y.S.2d 119, 399 N.E.2d 1140 [1979] ), defendant presented expert proof that it complied with the standard of care. Plaintiffs countered defendant's submissions by presenting documents and affidavits that, without the necessity of expert proof, raised questions of fact as to whether defendant complied with the standard of care set forth by its own experts.

Despite the statements and conclusions of defendant's experts, the record does not contain an explanation as to how a large pool of solvents developed beneath defendant's facility. An ordinary layperson could conclude that a corporation fails to meet the standard of due care if it allows toxic chemicals to form into a large underground pool and then migrate onto or through properties up to a mile away, especially considering the estimates of the amounts of solvents and the time period over which the pool must have formed. The record contains varying estimates as to how much solvent was in the pool and what amount was TCE, raising factual issues. Although some of defendant's experts opined that TCE is not generally considered carcinogenic in humans, or at least not at the levels to which Timothy Ivory and Thomas H. Ivory were exposed, plaintiffs submitted proof from a physician who concluded that TCE exposure was a significant contributing factor to Timothy Ivory's and Thomas H. Ivory's development of cancer. The record also contains documents indicating defendant's awareness of leaking or missing solvents, as well as the ill health effects of TCE. Considering all of these factual issues concerning the negligence claims of Thomas H. Ivory and Timothy Ivory, Supreme Court appropriately denied summary judgment on those claims.

Supreme Court did not err in finding a question of fact with regard to the doctrine of res ipsa loquitur. The only element of that doctrine that defendant addresses on appeal is whether the accident is the type that usually does not occur absent someone's negligence ( see James v. Wormuth, 21 N.Y.3d 540, 546, 974 N.Y.S.2d 308, 997 N.E.2d 133 [2013] ). Documents and affidavits in the record, along with common sense, are sufficient to establish that the formation of a large solvent pool is not something that happens absent someone's negligence, and “the issue of proximate cause is ordinarily a question of fact for a jury to resolve” ( Schlanger v. Doe, 53 A.D.3d 827, 829–830, 861 N.Y.S.2d 499 [2008];compare 92 Ct. St. Holding Corp., LLC v. Monnet, 106 A.D.3d 1404, 1407, 966 N.Y.S.2d 549 [2013] ). Thus, the court reasonably determined that plaintiffs could attempt to rely on res ipsa loquitur at trial, and deferred any final determination on the issue until such time.

Supreme Court did not err in dismissing plaintiff James Odom's private nuisance claim. The Court of Appeals has held that an occupant of a home who lacks an ownership or possessory interest in the property cannot maintain a claim for private nuisance ( see Kavanagh v. Barber, 131 N.Y. 211, 213–214, 30 N.E. 235 [1892];see also Hughes v. City of Auburn, 161 N.Y. 96, 105, 55 N.E. 389 [1899] ). While some may deem this rule antiquated, especially as it applies to a spouse or child who lives in a family home but does not have a legal interest in the property, the rule preserves the essence of private nuisance claims, which is to permit recovery for interference with use and enjoyment of land that amounts to an injury to a right of ownership in the land ( see Swearingen v. Long, 889...