Kowalski v. Goodyear Tire and Rubber Co., 92-CV-380C.

Citation841 F. Supp. 104
Decision Date04 January 1994
Docket NumberNo. 92-CV-380C.,92-CV-380C.
PartiesDorothy J. KOWALSKI and Louis Kowalski, Jr., her spouse, Plaintiffs, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York

Steven H. Wodka, Little Silver, NJ, and John N. Lipsitz, Buffalo, NY, for plaintiffs.

Volgenau & Bosse (Diane F. Bosse, of counsel), Buffalo, NY, for defendant.

BACKGROUND

CURTIN, District Judge.

Plaintiffs Dorothy J. and Louis Kowalski, Jr., bring this action in negligence and strict liability against defendant Goodyear Tire & Rubber Company ("Goodyear"). The Kowalskis allege that Goodyear failed to prevent the release of ortho-toluidine, an abnormally dangerous hazard, from its Niagara Falls plant, contaminating the plaintiffs and causing Mrs. Kowalski to contract bladder cancer. The release occurred when Mr. Kowalski, a long-term employee of the defendant, left the plant each day. Although he showered and changed out of his work clothes, the configuration of the shower and locker facilities permitted the chemical to recontaminate his hair, skin, and street clothes.

Mrs. Kowalski allegedly became ill with cancer as a result of 25 years of exposure to ortho-toluidine through the handling of her husband's clothing and the spread of the chemical throughout their house. The 20year latency period is consistent with the latency period for occupational bladder carcinogens. Plaintiffs assert that Goodyear knew that the chemical could cause bladder cancer, yet failed to inform its work force of the potential effects of exposure to ortho-toluidine to themselves and their families, even after Goodyear learned that several employees had in fact contracted the disease.

Plaintiffs seek recovery in strict liability for the release of an abnormally hazardous substance into the environment, for personal injury and loss of consortium which resulted from defendant's negligent actions, and for punitive damages.

Goodyear moves for summary judgment on three grounds. First, it contends that the statute of limitations bars this action. Secondly, Goodyear asks that summary judgment be granted on the strict liability claim because plaintiffs have failed to define the abnormally dangerous activity of the defendant. Finally, it asserts that plaintiffs have failed to state a claim of negligence for which relief may be granted because they have not alleged as a necessary element the duty which Goodyear owed to Mrs. Kowalski.

DISCUSSION
I. Standard for Summary Judgment

Summary judgment may be granted if the pleadings, depositions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). All ambiguities are resolved in favor of the non-moving party. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.1991).

II. Statute of Limitations
A. Effect of State Statute

The parties do not dispute that plaintiffs' claim is time-barred if they are forced to rely on the New York statute of limitations for personal injury tort. N.Y.Civ.Prac.L. & R. 214-c(2) (McKinney 1990) states that:

The accrual date for an action to recover damages for personal injury ... caused by the latent effects of exposure to any substance ... is the date of discovery of the injury by the plaintiff or ... the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

Section 214-c(4) extends the statutory limitation for situations in which the prospective plaintiff discovers the injury but cannot identify its cause. Subsection 4 provides for five years to discover the cause of illness, and one additional year to commence the action if the plaintiff can "demonstrate that the state of medical or scientific knowledge was such that causation of his injury could not have been identified within the three-year period...." McLaughlin, Practice Commentaries, 7B McKinney 214-c(4).

Mrs. Kowalski was diagnosed with bladder cancer on February 1, 1984. According to New York law, the injury is discovered for limitations purposes when it is diagnosed. Michael v. Ametelco, Inc., 150 Misc.2d 507, 568 N.Y.S.2d 1003, aff'd, 175 A.D.2d 667, 573 N.Y.S.2d 945, appeal denied, 78 N.Y.2d 862, 578 N.Y.S.2d 877, 586 N.E.2d 60 (1991). The commencement of the suit in June 1992 makes it untimely even with the application of the § 214-c(4) discovery extension.

B. Federal Commencement Date Preemption

The Kowalskis argue that their action is governed by the federally required commencement date preemption of the state statute of limitations pursuant to 42 U.S.C. § 9658, in the Superfund Amendments and Reauthorization Act of 1986 ("SARA") amendment to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). 42 U.S.C. §§ 9601-62 (1993). They claim that Congress passed this amendment expressly to circumvent the dilemma faced by prospective plaintiffs exposed to toxic substances whose actions were barred even before they knew of the cause of their injury.1

The federally required commencement date delays the running of the state statute of limitations until "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." 42 U.S.C. § 9658(b)(4)(A). It "effectively creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury...." Soo Line Ry. Co. v. B.J. Carney & Co., 797 F.Supp. 1472, 1487 (D.Minn.1992). The Kowalskis claim that this mandated delay tolled the statute of limitations for their suit until April 23, 1992, when they first learned of the possible causal relationship between Mrs. Kowalski's bladder cancer and her husband's work at Goodyear. L. Kowalski Aff. ¶ 11.

Goodyear counters that CERCLA's § 9658 only applies to causes of action for personal injuries under state law when there is an underlying CERCLA action. "The discovery statute of limitations added to CERCLA in the SARA amendments is limited to personal injury or property damage causes of action under state law in situations where there is an underlying CERCLA action providing for cleanup and remedial activities." Knox v. AC & S, Inc., 690 F.Supp. 752, 757 (N.D.Ind. 1988).

When CERCLA was enacted in 1980, the legislation included a mandate to the President to conduct a study and submit the findings to Congress "to determine the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment. ..." 42 U.S.C. § 9651(e)(1) (1983). Subsection (4) of the same section required the study group to issue a report explicitly addressing:

(A) the need for revisions in existing statutory or common law, and
(B) whether such revisions should take the form of Federal statute or the development of a model code which is recommended for adoption by the States.

As a result of the study group's recommendations, Congress passed the Superfund Amendments and Reauthorization Act (SARA) in 1986. Pub.L. 99-499 (1986). Title II, § 203 of SARA, which became § 9658 of CERCLA, addresses the problem of the inadequate time limits for filing state actions for personal injury and property damage caused by the release of hazardous substances, pollutants, or contaminants. There is nothing in the language of the section that requires an underlying CERCLA action in order to apply the federally required commencement date preemption of the state statute of limitations. The Congressional reports accompanying and explaining the legislation also makes no reference to an underlying CERCLA action.2 See H.R.Rep. No. 253(I), 99th Cong.2d Sess. at 257, 285, reprinted in 1986 U.S.C.C.A.N. 2835, 2960.

Defendant cannot point to any other section of CERCLA which makes an underlying action a requirement. Rather, it argues that a "whole statute" construction principle and common sense dictate that § 9658 only applies when underlying CERCLA actions are present. Goodyear correctly states that the primary goals of CERCLA are to enable the EPA to respond effectively and expeditiously to toxic spills and hold those parties responsible for the releases liable for the costs of the cleanup. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). However, careful reading of both CERCLA and the SARA amendments shows that these are not the only goals, as evidenced by the mandate of § 9651(e) discussed above. Indeed, the provision in SARA which follows § 9658 is the section authorizing citizen actions for alleged violations "of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter...." 42 U.S.C. § 9659(a)(1). Such a provision would make no sense if it was dependent on an underlying CERCLA action.

As plaintiffs assert, CERCLA provides a wide range of remedial action to cope with the problems of environmental waste. It is not limited to authorizing the federal government to file an action. The plain reading of § 9658 in the context of the mandate which resulted in the SARA amendments suggests that the preemption of a state statute of limitations was passed as an additional remedy, not one confined to actual CERCLA actions.

Goodyear next argues that the federal statute only preempts the state accrual date where there is a "release," as defined, of a hazardous substance, pollutant, or contaminant, into the "environment" as defined. In this case, the manner of alleged release is the carrying-out of the substance from the...

To continue reading

Request your trial
17 cases
  • Greco v. United Technologies Corp.
    • United States
    • Supreme Court of Connecticut
    • February 28, 2006
    ...and 9601(8).29 The plaintiffs urge us to adopt the reasoning of the United States District Court in Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y. 1994), a case that arguably supports the plaintiffs' contention that the trial court improperly granted the defendants' motio......
  • In re Pfohl Bros. Landfill Litigation, 95-CV-0020A.
    • United States
    • U.S. District Court — Western District of New York
    • October 27, 1998
    ...any claims for which the cause of the injury had yet to be discovered as of December 11, 1980. See Kowalski v. Goodyear Tire and Rubber Co., 841 F.Supp. 104, 108 (W.D.N.Y.1994) (holding toxic tort action filed in 1992 timely under § 214-c given the preemptive effect of the FRCD where exposu......
  • In re Pfohl Bros. Landfill Litigation
    • United States
    • U.S. District Court — Western District of New York
    • September 22, 1999
    ...involving releases of hazardous substances that cause or contribute to personal injury. Pfohl I, at 522; Kowalski v. Goodyear Tire and Rubber Co., 841 F.Supp. 104 (W.D.N.Y.1994). Defendants have incorporated by reference their arguments on this same issue in Pfohl I. Liaison Group Defendant......
  • Becton v. Rhone-Poulenc, Inc.
    • United States
    • Supreme Court of Alabama
    • November 7, 1997
    ...plaintiff's property presented a context to which CERCLA remedies might apply. We also note that Becton cited Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y.1994), and Vermont v. Staco, Inc., 684 F.Supp. 822 (D.Vt.1988), vacated in part on other grounds, by an unpublished ......
  • Request a trial to view additional results
2 books & journal articles
  • The Comprehensive Environmental Response, Compensation, and Liability Act: the correct paradigm of strict liability and the problem of individual causation.
    • United States
    • UCLA Journal of Environmental Law & Policy Vol. 18 No. 2, December 2000
    • December 22, 2000
    ...In re Tutu Wells Contamination Litig., 846 F. Supp. 1243, 1269-70 (D.V.I. 1993). (150.) Kowalski v. Goodyear Tire & Rubber Co., 841 F. Supp. 104, 109 (W.D.N.Y. 1994); Greene v. Prod. Mfg. Corp., 842 F. Supp. 1321, 1327 (D. Kan. 1993); In re Poling Transp. Corp., 784 F. Supp. 1045, 1049-......
  • CERCLA Liability
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...a ‘release’ or ‘substantial threat’ of release of hazardous substances into the environment.”); Kowalski v. Goodyear Tire & Rubber Co., 841 F. Supp. 104, 108 (W.D.N.Y. 1994) (release by being carried on clothing); United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 1149 (D. Ariz. 198......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT