Young v. Elmira Transit Mix, Inc.

• Decision Date: 21 May 1976
• Citation: 52 A.D.2d 202,383 N.Y.S.2d 729
• Parties: Clifford A. YOUNG, Respondent, v. ELMIRA TRANSIT MIX, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 729

383 N.Y.S.2d 729

52 A.D.2d 202

Clifford A. YOUNG, Respondent, v.ELMIRA TRANSIT MIX, INC., Appellant.

Supreme Court, Appellate Division, Fourth Department.

May 21, 1976.

Hiscock, Lee, Rogers, Henley & Barclay, Syracuse, for appellant(Howard Munson, Syracuse, of counsel).

Rizzo, Aloi, Grasso, Urciuoli & Becchio, Syracuse, for respondent(Irwin Birnbaum, Syrcuse, Sheila L. Birnbaum, New York City, of counsel).

Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and GOLDMAN, JJ.

CARDAMONE, Justice:

Defendant appeals from a judgment in favor of plaintiff entered upon a $60,000 jury verdict.Plaintiff, Clifford Young, was constructing his own house in Syracuse, New York on a 'do-it-yourself' basis during the year 1965.In May of that year he ordered some cement from the defendant, Elmira Transit Mix, Inc., to lay the footings and in December he ordered the same type of cement from defendant to install the cellar floor.Two loads of concrete were delivered.When plaintiff arrived to perform this work he changed into some workclothes which he had brought with him.These included red thermal underwear, rubber boot packs, knee pads and pants.After the first load of cement was delivered, plaintiff changed his pants and knee pads because they were wet.His underwear was damp, but he did not change that or his socks.He put the same boots back on and tied some old sweatshirts around his knees and continued to smooth out the concrete until there came a time when he could not get up, lost his balance and fell.About five minutes later he fell again and upon being helped up he saw some red fluid oozing out of his boot.

Cement is an ancient product and Portland cement, which was what defendant delivered to plaintiff in this case, is a product which is manufactured by many different companies and has been known for about 150 years.Lime is one of its ingredients and the dangers of irritations and burns from this ingredient have been known for centuries.Portland cement has a PH factor in the neighborhood of 10 to 12.5.Although the PH factor of the cement sold was within the anticipated range for Portland cement, the second batch delivered had a PH factor of 12.2 which meant that its alkalinity was 100 times greater than the first batch delivered to plaintiff which had a PH factor of 10.3.

As a result of his exposure to this wet cement, Mr. Young suffered third degree burns on his lower legs.He was hospitalized for about a month and he had skin grafts taken from his upper thighs to cover the lower halves of both legs.On May 22, 1967plaintiff returned to work.The doctor testified that plaintiff's lower legs were blotchy in appearance and had areas of loss of sensation to touch, pinprick and temperature.His right great toe had lost 50% Of its flexibility causing problems with respect to balance and his varicose veins had increased in severity and would require surgery.At the end of a working day as a machine operator, plaintiff experienced cramps in his legs, lameness and a sore toe.

Plaintiff testified that although he worked with different types of cement in odd jobs, he had never previously been injured.He said that all that he knew about the dangers from using cement was that if an open cut was exposed to wet cement it would get sore and take a little longer to heal than usual.Although he knew that cement contained lime, he did not know that contact with it could burn the skin.Defendant's plant superintendent testified that he was aware that concrete could cause burns to the skin and that the severity of the burn depended on the length of time the concrete was in contact with the skin.It was his opinion that even dry cement was dangerous to a certain degree.He stated that it was not company procedure, nor did he ask company drivers, to give instructions or warn customers as to the proper and safe manner in which to handle cement even though defendant sold cement to 'lay persons' who would have no knowledge of the dangers in using it.Defendant's drivers testified that they did not warn customers to take safety precautions even though one of defendant's drivers knew that cement could burn or cause infection.

All the expert witnesses produced at the trial agreed, based upon their expert knowledge and experience, that wet cement was dangerous when in direct contact with the skin and could burn people's skin through wet clothing.The experts testified that persons working with wet...