June v. Laris

• Decision Date: 08 September 1993
• Citation: 158 Misc.2d 881,602 N.Y.S.2d 778
• Parties: William L. JUNE, Jr. and Tamara June, Plaintiffs, v. James LARIS and Carmel Chemical Corporation, Defendants. CARMEL CHEMICAL CORPORATION, Third-Party Plaintiff, v. CHEVRON CHEMICAL COMPANY and Valent U.S.A. Corporation, Third-Party Defendants.
• Court: New York Supreme Court

Page 778

602 N.Y.S.2d 778

158 Misc.2d 881

William L. JUNE, Jr. and Tamara June, Plaintiffs, v. James LARIS and Carmel Chemical Corporation, Defendants.

CARMEL CHEMICAL CORPORATION, Third-Party Plaintiff, v. CHEVRON CHEMICAL COMPANY and Valent U.S.A. Corporation,

Third-Party Defendants.

Supreme Court, Madison County.

Sept. 8, 1993.

Anthony F. Endieveri, Camillus, for plaintiffs.

MacKenzie Smith Lewis Michell & Hughes (Barney F. Bilello, of counsel), Frank J. Vavonese, Syracuse, for defendant Laris.

Hancock & Estabrook (Donald P. McCarthy, of counsel), Syracuse, for defendant and third-party plaintiff (Carmel).

Hiscock & Barclay (Robert A. Barrer, of counsel), Syracuse, for third-party defendants.

ALBERT E. TAIT, Jr., Justice.

Defendant James Laris moves to dismiss the complaint as against him. Third-party defendants Chevron Chemical Company and Valent U.S.A. Corporation (Chevron/Valent) cross-move to dismiss the third-party complaint for failure to state a cause of action. Defendant/third-party plaintiff Carmel Chemical Corporation (Carmel) cross-moves to dismiss the complaint as against it. Plaintiffs cross-move to amend their complaint.

In the underlying action plaintiffs seek damages for personal injuries allegedly sustained by William L. June, Jr., a volunteer firefighter, as a result of his exposure to pesticide during the course of responding to an emergency call. The undisputed facts are as follows. At approximately 9:00 p.m. on July 24, 1991, a report of a smoke condition was made to the North Chittenango Fire Department of which William June was Fire Chief. June drove his own vehicle to the area where the smoke condition had been reported. At Chestnut Ridge Road plaintiff encountered a whitish-gray smoke of unknown origin which he drove through in his motor vehicle. At Black Creek Road he continued driving for approximately 15-30 seconds through an even denser cloud with his car windows open. During this time his face became numb, his tongue swelled and he tasted diesel fuel. Shortly thereafter he learned that the cause of the cloud was a farmer, later identified as defendant Laris, spraying insecticide on his property. The symptoms disappeared and June left the premises to respond to another fire call. Later that day he experienced physical symptoms including upset stomach, dizziness and numbness in his hands and feet.

Plaintiffs' amended complaint pleads five causes of action. The first alleges negligence against Laris. The second alleges failure to warn against Laris and Carmel. The third and fourth are against Laris only and allege products liability and punitive damages, respectively. The fifth cause of action against both defendants is a derivative action for loss of consortium.

Defendant Laris moves to dismiss the complaint as against him based on the so-called "fireman's rule", a long-standing common-law rule that firefighters injured while extinguishing fires cannot generally recover against those whose negligence in maintaining the premises occasioned the fire (Santangelo v. State of N.Y., 71 N.Y.2d 393, 396, 526 N.Y.S.2d 812, 521 N.E.2d 770; McGee v. Adams Paper & Twine Co., 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289, affg. on opn. below 26 A.D.2d 186, 271 N.Y.S.2d 698). The negligence of the property owner cannot be the basis for his liability for injury received by the fireman during the performance of his duties (McGee, supra ). In Santangelo, supra, the Court of Appeals extended the rule to police officers holding that "like firefighters they generally cannot recover damages for negligence in the very situations that create the occasion for their services."

In the case of Furch v. General Elec. Co., 142 A.D.2d 8, 535 N.Y.S.2d 182, firefighters were injured by exposure to a toxic substance released during a fire caused by malfunction of electrical equipment. In their actions against the contractor who installed the equipment plaintiffs argued that the "fireman's rule" only applied to actions against the owner or occupant of the premises. The Court declined to so limit the rule holding that the rule is applicable to "any person whose negligence creates the occasion for the firefighter's services and thereby exposes him to the hazards normally associated with the performance of firemanic duties." The Court acknowledged that the risk of exposure to toxic substances is an unfortunate consequence of modern technology. However it held that neither the risk-based rationale for the "fireman's rule" nor the policy considerations upon which it is based supports an application of the rule which would absolve a party from liability for negligently exposing firefighters to toxic substances "where, as here, the alleged negligence is independent of that which created the need for their services and the emergency personnel have no reason to believe that exposure to toxic substances is a risk inherent in the emergency." That situation is to be contrasted with the situation "where the emergency itself patently involves the risk of exposure to toxic substances." The basis for the exception to the "fireman's rule" was the finding that the negligence was "separate and apart from the negligence which occasioned the emergency for which plaintiffs were summoned."

In Starkey v. Trancamp Contr., 152 A.D.2d 358, 548 N.Y.S.2d 722, the Court again applied the "separate and apart" rationale stating that the Court must examine the degree of separation between the negligent act directly causing the injury and the act which occasioned the officer's presence.

In Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369 (1993) a police officer sought compensation for injuries sustained in an automobile accident which occurred while she was responding to an emergency. The car in which plaintiff was a passenger crashed into the rear of another car which was stopped at an intersection for a red light. The Court of Appeals noted that it has never adopted the "separate and distinct" exception enunciated in Starkey, supra. Rather, the determinative factor is "whether the injury sustained is related to the particular dangers" expected as part of the officers' duties. This analysis is based on the policy reasons for the rule, i.e., that firefighters and police officers are trained and compensated to encounter special hazards inherent in their work and assumed as part of their employment. Applying that reasoning the Court found that plaintiff's injuries were related to a particular risk which she had assumed as part of her duties. Part of that risk included the possibility of injury while rushing to the scene of an emergency. Accordingly the rule precluded plaintiff's action for injuries sustained while responding to a call.

Applying that rationale to the case at bar this court finds that plaintiffs' action based on common-law negligence should be dismissed. As noted in Furch, supra, the risk to firefighters of exposure to toxic substances is an unfortunate but foreseeable consequence of modern technology. The risk assumed by plaintiff as a volunteer firefighter included the possibility of such exposure when responding to an emergency call regarding a cloud of unknown origin. Plaintiff is barred by the "fireman's rule" from recovering from the person whose negligence created the very risk which occasioned his presence on the premises.

Plaintiffs argue that their second cause of action against Laris based on failure to warn is viable based on the holding in Guadagno v. Baltimore & Ohio Railroad Company, 155 A.D.2d 981, 548 N.Y.S.2d 966. In that case police officers were injured by exposure to gas following a train derailment. The injury occurred sometime after the derailment when, during efforts to stabilize a derailed car, it fell and released the gas. Plaintiff was barred by the "fireman's rule" from maintaining an action in common-law negligence but was not precluded from maintaining an action based on a theory of failure to warn. The Court held that the "fireman's rule" was inapplicable to that cause of action "because that alleged negligence was not the reason plaintiff was on the scene."

To the extent that the Court in Guadagno, supra, was applying the "separate and apart" distinction that reasoning has been denounced by the Court of Appeals in Cooper, supra. Moreover in those cases where liability was grounded in a failure to warn there had been sufficient lapse of time between the arrival of the emergency personnel and the injurious exposure so as to permit the defendant to be aware of the danger and to have an opportunity to give warning (see, Furch, supra and Starkey, supra ). No such situation existed in the case at bar. By the time defendant Laris encountered plaintiff and learned of his presence on the premises plaintiff had already been exposed to the pesticide and any damage or injury had already occurred. There has been no showing of any opportunity by defendant Laris to warn plaintiff prior to his exposure. Even where negligence and injury are established proximate cause remains an element which must be established in order for there to be liability on the part of the negligent person (Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 534 N.Y.S.2d 360, 530 N.E.2d 1280; Farinaro v. State of New York, 132 A.D.2d 642, 518 N.Y.S.2d 16).

In the case of McGee, supra, the Court refused to permit plaintiffs' action including their claim based on failure to warn noting that liability "must generally rest upon causes other than those having to do with the inception of the fire and the ordinary hazards pertinent to the fighting and the spreading of the fire and the protecting of the property therefrom." In the instant case plaintiff's injuries arose directly from the inception of the pesticide cloud which was itself the emergency which prompted plaintiff's presence on the premises.

Plaintiffs' remaining causes of action against defendant Laris should be dismissed. Plaintiffs...