Widera v. Ettco Wire and Cable Corp.

• Decision Date: 02 May 1994
• Citation: 611 N.Y.S.2d 569,204 A.D.2d 306
• Parties: , 62 USLW 2800 Catherine WIDERA, etc., et al., Appellants, v. ETTCO WIRE AND CABLE CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 569

611 N.Y.S.2d 569

204 A.D.2d 306, 62 USLW 2800

Catherine WIDERA, etc., et al., Appellants, v. ETTCO WIRE AND CABLE CORP., Respondent.

Supreme Court, Appellate Division Second Department.

May 2, 1994.

Wallman & Wechsler, P.C., New York City (Lori Ehrlich and David S. Dender, of counsel), for appellants.

Ciovacco & Campanella, East Meadow (Lewis J. Campanella, of counsel), for respondent.

Before THOMPSON, J.P., and SANTUCCI, FRIEDMANN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (DiTucci, J.), dated March 10, 1992, as, upon granting the defendant's motion for partial summary judgment, searched the record, and dismissed so much of the first cause of action in the complaint as sounded in common-law negligence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs allege that the infant plaintiff Catherine Widera was exposed to toxic chemicals while in utero and, as a result, suffers from various physical infirmities. As stated in the complaint and as amplified by the bill of particulars, the exposure took place when the infant plaintiff's father brought his work clothes home to be washed by his then pregnant wife. During the time in question, he was employed by the defendant as either an "extruder helper" or a "blender operator" and, in the course of his employment, was exposed to various toxins.

In their complaint the plaintiffs alleged two causes of action. The first cause of action sought to recover damages for personal injuries to the infant plaintiff based on (1) common-law negligence and (2) violations of various provisions of the New York State Labor Law and the Federal Occupational Safety and Health Act (hereinafter OSHA). The second cause of action was a derivative claim on behalf of the infant's father for loss of services. The defendant moved for partial summary judgment to dismiss so much of the first cause of action as alleged liability under the Labor Law and OSHA. The Supreme Court granted the motion, and, upon searching the record, dismissed the entire first cause of action holding that "no cause of action exists on behalf of the infant plaintiff pursuant to common law negligence, the Labor Law or OSHA". On appeal the plaintiffs have abandoned any argument regarding that portion of their first cause of action which asserted a claim pursuant to the Labor Law or OSHA. Instead, the plaintiffs argue that the Supreme Court erred in dismissing so much of the first cause of action as sounded in common-law negligence.

Upon our review of the facts of this case as well as the applicable legal principles involved, we conclude that the Supreme Court properly dismissed the plaintiffs' entire first cause of action, including any cause of action based upon common-law negligence. Under common law, an employer had the duty to provide employees with a safe workplace (see, Labor Law § 200; Russin v. Picciano & Son, 54 N.Y.2d 311, 316-317, 445 N.Y.S.2d 127, 429 N.E.2d 805; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299, 405 N.Y.S.2d 630, 376 N.E.2d 1276; Maddox v. City of New York, 108 A.D.2d 42, 487 N.Y.S.2d 354, aff'd 66 N.Y.2d 270, 496 N.Y.S.2d 726, 487 N.E.2d 553). However, that duty has not been extended to encompass individuals, such as the infant plaintiff, who are neither "employees" nor "employed" at the worksite (see, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577, 561 N.Y.S.2d 892, 563 N.E.2d 263; Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786; Tobin v. Grossman, 24 N.Y.2d 609, 615-616, 301 N.Y.S.2d 554, 249 N.E.2d 419; cf., Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691). Nor does our research reveal a reported case from any jurisdiction where an employer's duty has been interpreted to extend to a person, such as the infant plaintiff, who is injured in the manner alleged herein. Since, in the absence of a duty there can be no liability, the Supreme Court properly dismissed that branch of the first cause of action sounding in common-law negligence (see, Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 528, 478 N.Y.S.2d 838, 467 N.E.2d 502; Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Henry v. Vann, 124 A.D.2d 783, 784, 508 N.Y.S.2d 502, aff'd 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896).

In reaching this conclusion, we are not unaware that "[i]n fixing the bounds of * * * duty, not only logic and science, but policy play an important role" (DeAngelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). However, it must also be recognized that there is a responsibility to consider the larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree (see, Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128; Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922; Tobin v. Grossman, supra ). The recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs. Accordingly, we decline to promulgate a policy which would extend the common law so as to bring the infant plaintiff within a class of people whose interests are entitled to protection from the defendant's conduct.

THOMPSON, J.P., and SANTUCCI and FLORIO, JJ., concur.

FRIEDMANN, Justice, dissents, and votes to reverse the order insofar as appealed from, on the law, and to reinstate the cause of action sounding in common-law negligence, with the following memorandum:

I respectfully dissent, and would reinstate the plaintiffs' negligence cause of action, as dismissal of the complaint based on "lack of duty" as a matter of law is against the trend of evolving law. It is worthy of note at the outset that the defendant did not move for this relief--as if in tacit acknowledgement that it was not warranted, but that the Supreme Court decided to reach the issue sua sponte, without affording the plaintiffs an opportunity to address it.

The infant plaintiff Catherine Widera sued to recover damages for injuries that she claimed she sustained while in utero as a result of her mother's exposure to lead dust and other toxins brought home by her father, the plaintiff Matthew Widera, from his employment as an "extruder helper" and a "blender operator" with the defendant, Ettco Wire and Cable Corp. (hereinafter Ettco).

The plaintiffs' theory is that during the course of his employment with Ettco, from 1967 to February 1973 when Catherine was born, Matthew "hand-fed" "dry blended", lead-laced products into various receptacles as part of his job, and then took his work clothes, laden with lead dust, home for his wife to launder.

Matthew himself suffered from "a severe skin rash and/or irritation * * * related to * * * lead exposure and lead intoxication", while his wife, the plaintiffs theorize, inhaled and otherwise absorbed (e.g., through the skin) the lead particles adhering to his work clothes as she washed them. Once in the mother's blood stream, the lead is believed to have traversed the placenta and damaged the developing fetus, resulting in the child's current complaints of, inter alia, brain damage, a seizure disorder, cerebral palsy of the right foot, and learning disabilities.

Both the plaintiff and her injuries were foreseeable, and sound policy dictates that defendant be held to a standard of reasonable care for the protection of such an innocent, foreseeable plaintiff, or assume the costs of its negligence. At the least, the case should be permitted to proceed through discovery, to flesh out the issues of whether or not the defendant was in fact negligent, whether it knew or should have known of the dangers posed to the families of its workers who took home their lead-contaminated work clothes for laundering, and whether the plaintiff can establish a causal nexus between her injuries and the defendant's breach of its duty of reasonable care.

" '[D]uty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk * * * But it should be recognized that 'duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection" (Prosser, Torts § 53, at 324-326 [4th ed]. Whether or not a "duty" runs from the defendant to the plaintiff is an issue of law, and "is never for the jury" (Prosser, Torts § 45, at 289 [4th ed]. While generally, "[t]he defendant is required to be reasonably careful, for the protection of those to whom harm can be foreseen", courts must "stop short of infinite liability" (Prosser, Torts § 43, at 257 [4th ed].

In determining whether a duty exists in, for example, the case of an arguably unforeseeable plaintiff, "[t]he real problem, and the one to which attention should be directed, is one of social policy: whether the defendants * * * should bear the heavy negligence losses of a complex civilization, rather than the individual plaintiff. Because these defendants are in large measure public utilities, governmental bodies, industries * * * and others who by rates, prices, taxes or insurance are better able to distribute the loss to the general public, many courts may reasonably consider that the burden should rest upon them, and experience no great difficulty in finding a 'duty' of protection" (Prosser, Torts § 43, at 257 [4th ed]. A court's finding of "duty" is therefore inextricably intertwined...