Segundo ORELLANA, et ano., Plaintiffs,
v.
BORO-WIDE RECYCLING CORP., et al., Defendants.
C C Eastern, Inc. I/s/h/a Central Transport, Inc., Third-Party Plaintiff,
New Style Recycling Corp., et al., Third-Party Defendants.
Dec. 19, 2007.
HERBERT KRAMER, J.
Upon the foregoing papers in this action by plaintiffs Segundo Orellana and Daisy Orellana (collectively, plaintiffs) for negligence, strict products liability, and breach of implied and express warranties, defendant Assured Packaging, Inc. (Assured) moves for summary judgment dismissing all claims and cross claims as against it, and defendant Demert Brands, Inc. (Demert) crossmoves for summary judgment dismissing all claims and cross claims as against it. Third-party defendant New Style Recycling Corp.(New Style) moves for summary judgment and an order, pursuant to CPLR 3126, dismissing the third-party complaint of defendant/ third-party plaintiff C C Eastern, Inc. i/s/h/a Central Transport, Inc. (CTI) and any and all claims as against it.
Assured was the manufacturer of Demert Nail Enamel Dryer (NED), a product sprayed on nails to dry nail polish. Assured manufactured the NED at its facility located in Ontario, Canada. In 2001, Demert purchased the rights to market the NED from a company named Creative and began its business relationship with Assured, who had previously manufactured the NED for Creative. Demert, thus, owned the trademark “Demert” and the sole ability to market the NED product. Assured shipped the NED from its plant, located in Ontario, Canada, pursuant to purchase orders placed by Demert to Demert’s warehouse in Lutz, Florida.
The NED aerosal cans shipped by Assured to Demert were enclosed in cardboard boxes, 12 cans per box. The label on the cardboard boxes provided: “LEVEL 3 AEROSOL” and (on the other side) “CONSUMER COMMODITY ORM-D MADE IN CANADA.”Level 3 Aerosol is a designation pursuant to National Fire Protection Association Standard 30B and it refers to the flammable nature of the aerosol. This category is commonly used within the shipping and storage industry and is reserved for the most flammable aerosols. ORM-D stands for “Other Regulated Materials.” It is defined at 49 CFR 173.144 and is a designation derived from the Federal Hazardous Materials Transportation Act (49 USC §§ 5101 et seq.) (the HMTA). It means that the product is packaged in a manner suitable for consumer consumption. Assured placed the following warning on the NED aerosol cans:
“WARNING: Flammable. DO NOT USE NEAR FIRE OR FLAME, OR WHILE SMOKING. Avoiding spraying in eye or toward face. Contents under pressure. Do not puncture or incinerate. Do not store at temperatures above 120 F. Use only as directed. Intentional misuse by deliberately concentrating and inhaling contents can be harmful or fatal. KEEP OUT OF REACH OF CHILDREN.”
Accompanying each shipment of the NED aerosol cans from Assured to Demert was a Material Safety Data Street, which contained information regarding the hazardous ingredients contained in the NED aerosol cans. It listed, as the propellants, isoprane and butane, and set forth the explosion hazards posed by the NED aerosol cans and that they were “sensitive to shock.”
CTI is a trucking company and a licensed common carrier, which, pursuant to an agreement with Demert, shipped the NED aerosol cans from Demert’s Florida warehouse to various CTI terminals across the country for subsequent local delivery. Boxes of the NED aerosol cans were shipped to the CTI terminal located at 271 Norman Avenue, in Brooklyn, New York (the CTI terminal) for intended delivery to purchasers in the New York City metropolitan area. The manager for the CTI terminal from December 2002 until September 2003, was Michael Stanczak (Stanczak). Beginning in December 2002, Stanczak observed approximately 60 boxes containing NED aerosol cans on the dock against the back far wall of the CTI terminal and some loose cans on the dock. Many of the loose cans were damaged and Stanczak began discarding these loose NED aerosol cans that were strewn about the ground in December 2002. After subsequent unsuccessful attempts to locate the intended purchaser of the NED aerosol cans, Stanczak, in the first or second week of April 2003, began discarding entire boxes of the NED. On May 4, 2003, Stanczak threw out numerous full boxes of the NED. According to Stanczak, although he observed the ORM-D marking on the boxes containing the NED aerosol cans, he did not read any writing on the NED cans, and while he was aware that he was discarding aerosol cans, he did not believe the product was hazardous.
Stanczak discarded these boxes of the NED into a container located at the CTI terminal and owned by Boro-Wide. Boro-Wide is a company in the business of collecting and processing garbage. Boro-Wide would use garbage trucks and roll-off trucks to pick up the garbage thrown into the containers by CTI once a week.
During the early morning hours of May 5, 2003, Wellington Duran (Duran), a Boro-Wide employee, placed the contents of the container into a garbage truck. The garbage truck was equipped with an automatic compactor, which automatically compressed the contents placed into it, including the NED aerosol cans, while Duran was at the CTI terminal. Since this was Duran’s last pick-up, he immediately drove to the waste transfer station (which processes waste), located at 49-10 Grant Avenue, in Brooklyn, New York, where he arrived at approximately 2:19 A.M., about 10 minutes later. This waste transfer station, used by Boro-Wide to dump the waste collected, was owned and operated by New Style. Shortly after arriving, Duran unloaded the contents of his garbage truck, including the compacted NED aerosol cans, via an overhead door, onto the floor of the waste transfer structure. According to a New York City Fire Department report, Duran informed an investigator that he heard a “hissing” sound as he dumped the contents of the garbage truck into the waste transfer building. The waste transfer building was not ventilated overnight.
At approximately 2:45 A.M., Orellana, an employee of New Style who operated machines to fill the trucks with garbage (and whose hours were from 3:00 A.M. to 1:30 P.M.), arrived for work and entered the waste transfer building. When Orellana turned on the light switch in the building, as was his usual routine, an explosion occurred and he sustained severe injuries, including burns. According to a final investigation of the New York City Fire Department and a report by the New York City Department of Environmental Protection, Division of Emergency Response & Technical Assessment, the explosion was caused by the accumulation of butane and isopropane that had leaked from approximately 500 structurally compromised NED aerosol cans. These gas vapors were ignited when Orellano turned the light switch to the “on” position. A total of 685 cans, equaling about 57 cases (12 cans per case), were recovered from the site of the explosion.
Consequently, on April 20, 2004, Orellana and his wife, Daisy Orellana, filed this action against Boro-Wide, CTI, and Antoinette Cristina, who is the president and sole shareholder of New Style. On July 11, 2005, CTI filed a third-party action against New Style, Assured, and Demert seeking contribution and/or indemnification from them, and, on August 9, 2005, plaintiffs amended their complaint to add Assured and Demert as direct defendants.
Plaintiffs’ complaint, with respect to Assured and Demert, alleges causes of action for negligence in offering a defective product with inadequate warning labels on the NED aerosol cans and shipping boxes; strict products liability for the defective condition of the product, and inadequate labeling on the cans and boxes; breach of express warranties and implied warranties of fitness for a particular purpose and merchantability; and loss of services on behalf of Daisy Orellana. Plaintiffs’ complaint, as against Boro-Wide, CTI, and Antoinette Cristina, alleges claims of negligence and loss of services on behalf of Daisy Orellana.
CTI’s third-party complaint alleges, as against Assured and Demert, causes of action for negligence and failing to provide a product safe for ordinary and intended use; failing to properly warn it regarding the foreseeable risks of the product, and negligent manufacture and design, with latent defects; strict products liability; and breaches of express warranties and implied warranties of fitness for a particular purpose and merchantability. CTI’s third-party complaint alleges, as against New Style, that New Style was negligent in failing to provide Orellana with a safe place to work, in failing to supervise Orellana in the performance of his work, and in the operation and maintenance of the waste transfer facility. The defendants and third-party defendants have asserted cross claims as against each other for contribution and/or indemnification.
Initially, the court notes that there is no opposition to Assured’s motion and Demert’s cross motion insofar as they seek summary judgment dismissing the claims sounding in breach of warranties, negligent manufacture, and strict products liability for defective manufacture. As such, dismissal of these claims is warranted (seeCPLR 3212[b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). Assured’s motion and Demert’s cross motion insofar as they seek the summary judgment dismissing claims based upon a failure to warn and inadequate labeling are opposed by plaintiffs, CTI, and Boro-Wide.
Assured and Demert assert that they cannot be held liable based upon failure to warn and inadequate labeling State law tort claims because the warnings on the boxes in which the NED aerosol cans were shipped complied with the HMTA (49 USC §§ 5101-5127) and the Department of Transportation (DOT) regulations codified under the HMTA. To support this assertion, Assured has submitted (and Demert also relies upon) the expert affidavit of Michael Fox, Ph.D (Dr. Fox), a physical chemist. Dr. Fox states that since the NED was a consumer commodity packaged in a manner suitable for consumer consumption, Assured was able to take advantage of an ORM-D classification, pursuant to 49 CFA 173.306(h). ORM-D is defined at 49 CFR 173.144, and is derived from the HMTA. Dr. Fox explains that (as noted above) ORM-D means that the product is packaged in a manner suitable for consumer consumption and that 49 CFR 173.306 is the section of the HMTA which specifically governs aerosols. 49 CFR 173.306(a)(3), which governs the labeling requirements of “Limited quantities of compressed gases,” refers to 49 CFR 173.306(h), which sets forth the requirements for classifying an aerosol as ORM-D. Dr. Fox asserts that the NED qualified for the ORM-D classification, and Assured was able to take advantage of this ORM-D exemption, pursuant to 49 CFR 173.306(h), because it was a consumer commodity packaged in a manner suitable for consumer consumption. He notes that flammable aerosols classified as ORM-D do not have to be classified or marked as a flammable gas, Class 2.1 (see49 CFR 173.306 [h] ). Dr. Fox points out that 49 CFR 172.316 provides that when shipping ORM-D material, the outer box must be marked “ORM-D,” and that is no other requirement, under the HMTA, regarding the marking of the boxes in which the NED cans were shipped. Thus, Dr. Fox concludes that Assured fully complied with the ORM-D exemption requirements in satisfaction of 49 CFR 173.306(h) and 49 CFR 171.2(e), and that the NED boxes were labeled in accordance with the HMTA requirements.
Plaintiffs, CTI, and Boro-Wide, in response, do not dispute that the NED boxes complied with the HMTA’s requirements. They argue, however, that the mere compliance with this Federal requirement (which they assert is minimal) does not translate into a showing that these warnings were adequate under State law, and does not preclude their claims. Assured and Demert, however, argue that all failure to warn and inadequate labeling claims are preempted by the HMTA.
Assured and Demert, in claiming preemption by the HMTA, rely upon 49 USC § 5125, which, in pertinent part, provides:
“(B) Substantive differences-
(1) Except as provided in subsection (c) of this section and unless authorized by another law of the United States, a law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe about any of the following subjects that is not substantively the same as a provision of this chapter or a regulation prescribed under this chapter, is preempted:(A) The designation, description and classification of hazardous material.
(B) The packing, repacking, handling, labeling, marking, and placarding of hazardous material …”
In addressing Assured and Demert’s preemption argument, it is noted that the HMTA was enacted in 1975 to develop a national regulatory scheme for the transportation of hazardous substances (see Commonwealth of Massachusetts v. U.S. Dept. of Transp., 93 F3d 890, 891 [DC Cir1996] ).49 CFR 171.1 defines “transportation functions,” which the HMTA regulates, as follows:
“Transportation of a hazardous material in commerce begins when a carrier takes physical possession of the hazardous material for the purpose of transporting it and continues until the package containing the hazardous materials is delivered to the destination indicated on a shipping document, package or other medium.”
49 CFR 171.1 further states that transportation includes loading, unloading, and storage incidental to movement of a hazardous material. Significantly, this section does not include disposal of the hazardous material within the definition of transportation.
The HMTA will not preempt a state common-law claim unless “the ‘Federal Government has weighed the competing interests … [and] reached an unambiguous conclusion about how these competing considerations should be resolved in a particular case … and implemented that conclusion via a specific mandate” ‘ (Waering v. BASF Corp., 146 F Supp 2d 675, 680 [M.D. Pa 2001],quoting Hawkins v. Leslie’s Pool Mart, 184 F3d 244, 254 [3d Cir1999] ). The HMTA was enacted “to promote the safe transportation of hazardous materials and thereby minimize the number and extent of accidents involving carriers of hazardous materials” (Sawash v Suburban Welders Supply Co., Inc., 407 Mass 311, 317, 553 N.E.2d 894, 897 [1990] ). The HMTA’s enactment “had nothing to do with post-transportation injuries” (Lyall v. Leslie’s Poolmart, 984 F Supp 587, 598 [ED N.Y.1997], see also Sawash, 407 Mass at 317-318, 553 N.E.2d at 898). “There is no indication that Congress intended to preempt common law state tort remedies arising out of a consumer’s end use of a hazardous material” (Olson v. Prosoco, Inc., 522 NW2d 284, 293 [Iowa 1994] ).
Assured and Demert contend, however, that plaintiffs’ claims did not arise out of a consumer’s end-use because no consumer ever touched the NED product. Assured and Demert argue that since the boxes of NED aerosol cans were never delivered to their intended destination, they were still “in transport” at the time CTI discarded the product.
This argument must be rejected. CTI was not delivering the NED products to a destination indicated on a document nor storing it incidental to its movement when they were placed in the Boro-Wide dumpster. Thus, it cannot be logically disputed that CTI was not engaged in the transporting of the NED products when they were placed in the Boro-Wide dumpster. Rather, Orellana’s injuries arose out of CTI’s disposal of the NED. While the HMTA governs the packaging, labeling, and marking of hazardous substances for storage and transportation, it does not regulate or govern the packaging, labeling, or marking of hazardous substances for disposal.
The fact that CTI was a common carrier involved in the transport of the NED was merely incidental to, and resulted in CTI’s possession of the NED. Orellana’s accident did not arise out of or during such transportation nor was it the result of anything that occurred during this transportation. Consequently, plaintiffs’ claims do not pertain to an injury which arose out of the transportation of this hazardous material. Therefore, CTI’s status was more akin to that of an end-use consumer, who is generally the one charged and burdened with the product’s ultimate disposal.
Assured and Demert additionally argue that since CTI was not a consumer, but a common carrier, it should be charged with understanding the meaning of the HMTA. Such argument is without moment, however, as the HMTA only relates to the dangers involved in the transportation of the product, not in its disposal, and the HMTA has no bearing upon the issue of whether the packaging, labeling, or marking of the NED was adequate for purposes of its disposal, as opposed to transportation purposes. The disposal of the NED product in the manner which resulted in Orellana’s injuries and which, plaintiffs allege, arose out of inadequate warnings, had nothing to do with the transportation of hazardous materials.
Assured further argues that the regulations addressing the disposal of hazardous waste are set forth by the Environmental Protection Agency (the EPA) and do not apply to it. Specifically, Assured asserts that only the Generator” of hazardous waste, who is defined under 40 CFR 260.10, as any person, by site, whose act or process produces hazardous waste identified in Part 261 or whose act first causes a hazardous waste to become subject to regulation,” is charged with complying with the EPA’s labeling and packaging requirements related to the disposal of hazardous waste. Assured contends that CTI, by deciding to dispose of the NED aerosol boxes, was the Generator” of hazardous waste. Assured’s argument, however, is unavailing since this lawsuit does not allege a claim based upon Assured’s liability as a generator of hazardous waste under the EPA, but State law tort claims based upon inadequate warnings by a manufacturer of a product. Additionally, the fact that there are specific regulations for the disposal of hazardous waste and that the HMTA does not address the disposal of hazardous waste is further indication that the HMTA cannot preempt plaintiffs’ claims herein.
Although Assured and Demert contend that the State tort claims at issue are preempted by the HMTA, they, despite the fact that the HMTA was enacted over 30 years ago, rely exclusively on the language of the statute itself and fail to cite a single case in which any court has held this. The cases in which courts have addressed the preemption issue have held that the HMTA is intended to and is limited to regulating the shipment or transport of hazardous materials in commerce and does not regulate the end use of a hazardous substance (see Lyall, 984 F Supp at 598;Olson, 522 NW2d at 293;Sawash, 407 Mass at 317-318, 553 N.E.2d at 898). Here, there is no overlap between the HMTA and plaintiffs’ action because the HMTA does not even attempt to regulate failure to warn claims arising in a context other than the transport of the hazardous product (see Lyall, 984 F Supp at 598;Olson, 522 NW2d at 293;Sawash, 407 Mass at 317-318, 553 N.E.2d at 898). Thus, to construe the HMTA to preclude plaintiffs’ tort claims would be an unreasonable and contorted interpretation of Congress’ intent in enacting the HMTA, and this court declines to do so (see Lyall, 984 F Supp at 598;Olson, 522 NW2d at 293;Sawash, 407 Mass at 317-318, 553 N.E.2d at 898).
Assured and Demert further argue that the warnings placed on the NED aerosol cans were reasonable and adequate because they warned against compressing, crushing, compacting, or otherwise damaging the canisters. The warnings actually provided on the NED aerosol cans, however, simply state: Do not puncture or incinerate.” They do not provide any directions as to the proper disposal of the NED product. While the warning on the NED cans stated that the product was flammable, it followed by stating, in the next sentence, not to use near fire or flame or while smoking. Thus, although this warning referenced the flammable nature of the NED during use near fire or flame or while smoking, it did not indicate the specific danger of flammability which could arise in connection with the NED product’s disposal.
A warning on a label may be inadequate simply because it does not indicate how the product is to be properly disposed of at all” (Brownlee v. Louisville Varnish Co., 641 F.2d 397, 401 n 6 [5th Cir1981] ). Here, there was no specific direction regarding the manner in which the NED aerosol cans were to be disposed. In this regard, it is noted that disposal is frequently accomplished by placing partially used products into trash cans which are eventually removed to bins where the compacting of the trash occurs. Furthermore, if the risk of explosion could have been diminished or eliminated by emptying the cans of the product, a jury might conclude that the warning placed on the cans was inadequate (see Id. at 401)
Moreover, plaintiffs have submitted the expert affidavit of Professor Kenneth R. Laughery, who holds a Ph.D. in Psychology and has published articles and lectured extensively on consumer warnings since 1983. Professor Laughery has opined, based upon a reasonable degree of human factors and warnings communications certainty, that the boxes of aerosol c, ans and the individual aerosol cans did not adequately address the puncture, compaction, and explosion hazard associated with disposal and failed to have an adequate warning which would draw attention to the disposal hazard and warn of the explicit consequences of puncture and compaction of the cans, including explosion, fire, and burns. He explains that the NED boxes and cans should have had conspicuous and prominent pictorial warnings and wording to advise that the aerosol cans were under pressure and contained highly flammable or explosive gases, and that, if ruptured, they would release explosive gases, and that they also should have stated that they should be disposed of as a hazardous material. He suggests that the warning should have prominently stated:
FIRE AND EXPLOSION HAZARD
This aerosol can is under pressure and contains highly flammable or explosive gases.
Do not use around flames or other ignition sources.
DISPOSAL: If ruptured, cans will release explosive gases.
DISPOSE AS HAZARDOUS MATERIALS
Read all warnings on can before using or disposing.”
Professor Laughery expresses his opinion that the failure to have such an adequate warning was a substantial factor in causing Orellana’s accident since if the cans had such a warning, they would not have been disposed of in the manner which led to the accident.
Plaintiffs’ expert’s opinion is further buttressed by the adduced deposition testimony. Scott Ihrig (Ihrig), who was responsible for disposing of CTI’s garbage, testified, at his deposition, that he considered material to be hazardous if it had a placard on it (Ihrig’s Dep. Transcript at 32-34). Ihrig also testified that if he knew the cans of aerosol said “flammable,” he would have notified the safety department in CTI’s corporate headquarters located in Michigan before disposing of the cans in the Boro-Wide dumpster (Ihrig’s Dep. Transcript at 53). Stanczak similarly testified, at his deposition, that if he knew material was hazardous, he would call CTI’s corporate headquarters in Michigan for instructions on how to dispose of it (Stanczak’s Dep. Transcript at 41).
“[I]n all but the most unusual circumstances, the adequacy of the warning is a question of fact” (Nagel v. Brothers Intl. Food, Inc., 34 AD3d 545, 547 [2006], quoting Montufar v. Shiva Automation Serv., 256 A.D.2d 607, 608 [1998] [internal quotation marks omitted]; see also Polimeni v. Minolta Corp., 227 A.D.2d 64, 67 [1997] ). Here, “[a] jury could reasonably conclude, on the basis of the warnings that the expert asserts should have been included on the label, that the warnings that were included were inadequate and inconspicious” (German v. Morales, 24 AD3d 246, 247 [2005] ).
Assured argues, however, that the Material Safety Data Sheet provided additional warnings. Specifically, it argues that it set forth that the NED aerosol cans contained the propellants isopropane and butane, posed an explosive hazard, and were “sensitive to shock .” The Material Safety Data Sheet, though, actually only states, under unusual fire and explosion hazards,” that containers may explode if exposed to temperatures greater then 50C, and that they were sensitive to shock and static discharge. While the Material Safety Data Sheet advises the reader not to puncture or incinerate containers, it does not specifically indicate that the crushing of the cans, during disposal, could lead to an explosion. Moreover, under the Waste Disposal Method” section of the Material Safety Data Sheet, it only generally states Dispose of in accordance with local, provincial and federal regulations.”
As noted above, CTI’s business involves the transport of products; it is not in the business of disposing of waste. It is also undisputed that although Assured provided the Material Safety Data Sheet to Demert, it was no longer present with the boxes of the NED product at the time it was received by CTI. In this regard, CTI has submitted the expert affidavit of George R. Thompson, Ph.D., president and CEO of Chemical Compliance Systems, Inc., who states that the failure to provide it with the Material Safety Data Sheet for the NED was in contravention of the requirement of the OSHA Hazard Communication Standard at 29 CFR 1910.1200. Thus, the Material Safety Data Sheet cannot provide a basis to preclude the claims at issue.
Assured and Demert also contend that since neither Orellana, Stanczak, nor Duran read the warnings affixed to the NED aerosol cans at any time prior to the explosion, the alleged inadequacy of the warnings on the NED aerosol cans could not have been a proximate cause of Orellana’s injuries. This contention is without merit. Under such circumstances, a manufacturer who provides insufficient warnings cannot avoid liability solely because the warnings which were provided were not read (see Vail v. KMart Corp., 25 AD3d 549, 551 [2006];German, 24 AD3d at 247). This is because the admitted failure to read the manufacturer’s warnings does not necessarily sever the causal connection between the alleged inadequacy of the warnings and the occurrence of the accident (see Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 71 [1992];see also Vail, 25 AD3d at 551;German, 24 AD3d at 247). The intensity of the language used in the text of the warning and the prominence with which such language is displayed are factors which must be considered since a person who tends to ignore one sort of label, might pay heed to a different, more prominent or more dramatic label” (Johnson, 183 A.D.2d at 70;see also German, 24 AD3d at 247).
Assured and Demert assert that since Stanczak threw out boxes, not individual cans, of NED on May 4, 2003, different warnings on the NED aerosol cans would not have changed Stanczak’s appreciation of the hazardous nature of the product. This assertion is not supported by the deposition testimony. While Stanczak testified that he threw out only boxes on May 4, 2003, he also testified that he had earlier viewed and thrown away individual cans (Stanczak’s Dep.Transcript at 72). Thus, it cannot be said as a matter of law that a more prominent warning on an individual can would not have caught Stanczak’s attention as to the hazardous nature of the product (see Johnson, 183 A.D.2d at 70-71).
Assured and Demert also point to Duran’s testimony that he did not examine the contents of the container while it was being loaded in the garbage truck. However, Duran testified, at his deposition, that he picked up and took possession of some individual NED aerosol cans, which were lying on the ground, to bring home to his wife (Duran’s Dep.Transcript at 38-41).
Assured and Demert additionally rely upon Duran’s deposition testimony that he was instructed by Boro-Wide not to place aerosol products into the garbage truck (Duran’s Dep.Transcript at 22). Assured and Demert argue that since Duran did not follow this instruction, different warnings would not have affected his behavior. It cannot, however, be concluded from this, as a matter of law, that if the gravity of danger had been brought to Duran’s attention by an adequate warning on the NED product, which was classified as a cosmetic” under the Federal Food, Drug and Cosmetic Act (21 USC 301 et seq.), he would not have not heeded the direction.
Additionally, it is noted that while Assured and Demert may argue that they did not anticipate that numerous cases of full cans of their NED product would be simultaneously thrown away, it may equally be argued that CTI would not have thrown away these products en masse in a dumpster if it had been alerted, by sufficient warnings, to the danger of disposing of the NED product in this manner. The printed information on the boxes contained no warning other than “Level 3 Aerosol” on one side of the carton and “Consumer Commodity ORM-D Made in Canada” on the other side of the carton. It contained no other warning, and no directions as to disposal or plainly warning that it could not be disposed of as ordinary non-hazardous consumer garbage in a conventional garbage dumpster. Indeed, CTI points out that since the boxes include the words “Consumer Commodity,” this arguably could lead one to assume that the NED product could be disposed of in the same manner as most other consumer products.
Thus, the court finds that material and triable issues of fact exist as to whether, if more conspicuous and prominent warnings were provided on the NED boxes and cans, Stanczak would not have disposed of them by throwing them in Boro-Wide’s dumpster and Duran would not have picked them up in his truck. Consequently, Assured’s motion and Demert’s cross motion insofar as they seek summary judgment with respect to plaintiffs’ claims, CTI’s third-party claims, and any and all cross claims based upon an inadequate warning must be denied (see Vail, 25 AD3d at 551;German, 24 AD3d at 247;Johnson, 183 A.D.2d at 71-72).
In support of its motion insofar as it seeks an order, pursuant to CPLR 3126, striking CTI’s third-party complaint and Demert’s cross claim as against it, New Style asserts that a January 25, 2007 order required CTI and Demert to provide a bill of particulars and responses to New Style’s June 1, 2006 and June 12, 2006 discovery demands and New Style’s May 12, 2006 and December 6, 2006 notices for discovery and inspection. New Style contends that both CTI and Demert have failed to provide it with a bill of particulars, and have failed to provide it with the court-ordered discovery responses.
Demert, in opposition, asserts that it served a response to New Style’s notices for discovery and inspection on May 2, 2007. Demert further asserts that the failure to serve a bill of particulars with respect to its cross claims against New Style was inadvertent and due to a mistake in, first, not sending it, to New Style and then, in sending it along with its response to New Style’s combined demands, to the wrong address. Demert, on June 1, 2007, has now sent New Style a copy of the bill of particulars and a response to New Style’s combined demands, as well as the returned envelope, which shows the incorrect mailing. Since Demert has demonstrated that it did not act wilfully or in bad faith in failing to timely serve its bill of particulars and discovery responses upon New Style and has now served them, the drastic remedy of striking Demert’s cross claim would be inappropriate (see Kusmin v. Visiting Nurse Serv. of NY, 22 AD3d 643, 644 [2005];Espinal v. City of New York, 264 A.D.2d 806, 806 [1999];Harris v. City of New York, 211 A.D.2d 663, 664 [1995];Lesting v. City of New York, 209 A.D.2d 384, 385). Thus, New Style’s motion insofar as it seeks an order, pursuant to CPLR 3126, dismissing Demert’s cross claim against it for failure to timely serve its bill of particulars and discovery responses must be denied.
With respect to CTI, New Style has not set forth, with specificity, the items of discovery which remain outstanding and, in its reply to CTI’s opposition papers, New Style no longer pursues its motion, pursuant to CPLR 3126, nor does it assert that CTI has not yet complied with the outstanding discovery. Thus, it does not appear that an order, pursuant to CPLR 3126, is warranted, but, to the extent that any discovery may remain outstanding, CTI is directed to provide it forthwith to New Style.
New Style, in support of its motion insofar as it seeks summary judgment dismissing CTI’s third-party complaint and Assured and Demert’s cross claims as against it, asserts that no claim of contribution or indemnification may be maintained against it because it was not negligent with respect to Orellana’s accident. Assured and CTI oppose New Style’s motion. They assert that New Style was negligent in failing to provide its employee, Orellana, with a safe place to work. Specifically, they contend that New Style was negligent in failing to turn on the ventilation system in the 49-10 Grand Avenue facility when the compromised aerosol cans were dumped on the floor of this facility. The waste transfer facility at 49-10 Grand Avenue was equipped with four different ventilation systems with air vents on top of the roof. Part of the permit, which was held by New Style to operate the waste transfer station and was obtained from the New York City Department of Sanitation (the DOS) and the New York State Department of Environmental Conservation (the DEC), required there to be an exhaust ventilation system at the facility (Robert Cristina’s Dep.Transcript at 29).
Michael Cristina testified, at his deposition, that the ventilation fans remained on whenever there was garbage on the floor of the facility, and that the first loads of garbage would be dumped into the subject waste transfer facility between 12:00 A.M. and 1:00 A.M. (Michael Cristina’s Dep. Transcript at 164-166). However, Michael Cristina also testified that the ventilation system was turned off overnight, as a matter of practice, and not turned on again until Orellana arrived at work at 3:00 A.M. (Michael Cristina’s Dep. Transcript at 162-164). Assured contends that Michael Cristina’s admission that ventilation fans were turned on whenever there was garbage on the floor of the facility, unless the garbage was placed there between the hours of midnight and 3:00 A.M., constitutes an admission of negligence on the part of New Style.
Assured has submitted the expert affidavit of Eugene J. West, an explosion and fire incident investigator. Eugene J. West opines that if the ventilation fans had been activated when Duran emptied the contents of the garbage truck into New Style’s waste transfer facility, a significant portion of the flammable gas vapors would have been mechanically vented to the building’s exterior. He explains that this mechanical venting would have caused the vapors in the vicinity of the garbage to diffuse upwards and mix with the larger volume of air within the building interior, thereby precluding the formation of a concentrated fuel rich vapor cloud in the vicinity of the premises, which ultimately ignited and caused the injuries to Orellana. He concludes that if the exhaust fan system had been activated, the concentration of ignitable vapors and the formation of the vapor cloud within the structure would not have occurred, and, therefore, could not have been ignited by the activation of an electric light switch in the building.
CTI similarly asserts that New Style was negligent in not having the ventilation fans operating during the time that the garbage was dumped on the floor of the waste transfer facility. CTI has submitted the expert affidavit of George R. Thompson, Ph.D. George R. Thompson, Ph.D. asserts that since flammable vapors are hazardous only when their concentration in the air exceeds the Lower Explosive Limit, the operation of the ventilation system (with two exhaust vents on each side of the building) may have maintained the vapor concentrations below the Lower Explosive Limits, thereby avoiding the explosion altogether, or, alternatively, the explosion could have occurred before Orellana arrived at the building, as a result of excessive vapor concentrations reaching the motors in the ventilation fans. George R. Thompson, Ph.D. opines that Orellana’s injuries would have been avoided if the ventilation system had been operating during the time the building was in use and garbage was being deposited into the building.
Under the “common law, an employer ha[s] the duty to provide employees with a safe workplace” (Widera v. Ettco Wire & Cable Corp., 204 A.D.2d 306, 307 [1997];see also Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316-317 [1981] ). In addition, an employer’s common-law duty to provide employees with a safe place to work is codified in Labor Law § 200 (see Russin, 54 N.Y.2d at 316-317). Liability under Labor Law § 200 is based upon the failure of an employer to take reasonable care and prudence in securing the safety of the work area, and negligence standards apply (see Hammond v. International Paper Co., 161 A.D.2d 914, 914 [1990] ).
New Style, in reply to Assured and CTI’s opposition papers, denies that Michael Cristina and Robert Cristina are principals, owners, employees, or officers of New Style. It states that Michael Cristina and Robert Cristina share ownership only of Boro-Wide, which is a separate corporate entity from New Style, and that New Style was owned only by Antoinette Cristina, who is Michael Cristina and Robert Cristina’s mother (Michael Cristina’s Dep. Transcript at 9). It points out that New Style and Boro-Wide have separate certificates of incorporation, and that Michael Cristina testified that in May 2003, neither he nor Robert Cristina was an employee or officer of Boro-Wide (Michael Cristina’s Dep. Transcript at 129-130, 258-259). New Style asserts that it was Robert Cristina, who determined the hours of operation for the ventilation system in the building and that since Robert Cristina was an officer and owner of Boro-Wide, and not New Style, it was Boro-Wide, and not New Style, who controlled the ventilation system. It argues that this absolves it of any responsibility with respect to the turning on of the ventilation system.
New Style’s argument must be rejected. While Michael Cristina and Robert Cristina may not have been formally designated as officers of New Style (although Michael Cristina at one point, actually first testified that he and Robert Cristina were both officers of New Style) (Michael Cristina’s Dep. Transcript at 11), Robert Cristina, testified, at his deposition, that his mother, Antoinette Cristina, performed no services on a day-to-day basis (Robert Cristina’s Dep. Transcript at 11), and that he and Michael Cristina “ran the business” for New Style (Robert Cristina’s Dep. Transcript at 11). In fact, it was Robert Cristina who hired Orellana (Robert Cristina’s Dep. Transcript at 45). Orellana testified, at his deposition, that it was Robert Cristina and Michael Cristina who told him what to do on a daily basis (Orellana’s Dep. Transcript at 10). Similarly, according to Robert Cristina, he and Michael Cristina were Orellana’s immediate supervisors, and gave Orellana directions on a daily basis of what he was supposed to do (Robert Cristina’s Dep. Transcript at 45).
Moreover, New Style’s work was conducted within and it operated out of the facility at 49-10 Grand Avenue (Robert Cristina’s Dep.Transcript at 9, 51) and, as noted above, it was New Style who held the DEC solid waste handling facility license and solid waste permit (Robert Cristina’s Dep.Transcript at 164). The DOS inspectors came to the building weekly, and would assess, among other things, if there was adequate ventilation (Robert Cristina’s Dep. Transcript at 32) and the DEC came to the building one time per month (Robert Cristina’s Dep. Transcript at 33). If any violation were issued, it would be issued to New Style because it held the permit for the waste transfer station (Robert Cristina’s Dep. Transcript at 33). Thus, the fact that New Style may have abdicated the decision of whether to keep the ventilation fans turned on to Michael Cristina and Robert Cristina (who were Boro-Wide officers) does not absolve it of the duty to provide its own employees with a safe work environment.
New Style further argues that the various New York City and New York State codes and regulations show that the purpose of requiring ventilation systems in waste transfer facilities is to remove noxious odors from the air to protect and ensure the health of workers working inside the facilities, rather than to remove hazardous and/or flammable vapors to prevent fires and/or explosions. It cites to section 4-16 of Title 16 of the Rules of the City of New York-Department of Sanitation, which requires that ventilation be provided in a structure for solid waste transfer in order to comply with section 135.07 of the New York City Health Code. New York City Health Code § 135.07 provides:
“Section 135.07 Ventilation.
All parts of commercial premises shall be adequately ventilated by natural or artificial means so as to be free from harmful and duly annoying heat, dust, fumes, vapors, gases, odors or.. condensate” (emphasis supplied).
Thus, New Style’s argument is not borne out by the language of New York City Health Code § 135.07 since it specifically requires ventilation for the purpose of eliminating “harmful … gases” rather than, as New Style contends, to merely remove unpleasant odors. Moreover, while New Style avers that the purpose of these applicable New York City and State regulations and codes is to protect the health of individuals and not to prevent fires and explosions, the prevention of fires and explosions is necessary to protect the health and well-being of individuals who would be harmed by a fire or explosion.
New Style also relies upon paragraph 31 of the rider to a lease between Antoinette Cristina and Boro-Wide, which requires Boro-Wide to “maintain in thorough repair and in good and safe condition all buildings and improvements on the leased property that may be built and their equipment and appurtenances.”New Style argues that this shows that Boro-Wide (rather than it) had the duty and obligation to maintain the ventilation system in good repair. Such lease provision, however, is not pertinent to the issue involved herein since it is not alleged that the ventilation system was in disrepair. Additionally, while the lease permitted Boro-Wide to occupy the premises, (as noted above) it was New Style who held the permit to operate the waste transfer facility, employed Orellana, and operated inside the facility.
New Style also contends that the expert affidavits of Eugene J. West and George R. Thompson, Ph.D. are conclusory and speculative. It asserts that Eugene J. West does not state what tests or experiments he performed, or what methodology he used to arrive at his opinion, and that he does not make reference to the size and dimensions of the Grand Avenue facility or the capacity of the ventilation system. New Style further asserts that George R. Thompson, Ph. D. does not state that he visited the Grand Avenue facility or reviewed any blueprints of it, and argues that George R. Thompson, Ph.D. similarly fails to set forth any test he conducted, any methodology he employed in any testing, and any study regarding vapor weight or speed of travel, or distance between the vapors and the ventilation system.
The court finds, however, that these experts’ affidavits have a sufficient scientific basis (and are supported by foundational facts in the record (see Potter v. Polzie, 303 A.D.2d 943, 944 [2003] ). In this regard, while New Style also points to Fire Marshal William Steinbuch’s deposition testimony, wherein he stated that he did not know whether the operation of the ventilation fans would have altered what happened, it is noted that he also testified (consistent with CTI and Assured’s experts) that if the ventilation fans were turned on prior to the explosion, it would have altered the mixture of the propellant with the air (Steinbuch’s Dep. Transcript at 90).
New Style has submitted the expert affidavit of Thomas E. Minnich, who is employed by Kufta Associates, Ltd., a business entity specializing in fire explosion and arson investigations. Thomas E. Minnich opines that nothing New Style did nor failed to do was a causative factor regarding the fire/explosion at issue. While this opinion conflicts with Assured and CTI’s experts’ opinions, the resolution of conflicting expert opinions is one for the jury and may not be resolved on a motion for summary judgment (see Pittsford Plaza Co. LP. v. TLC West LLC, — AD3d —-, 2007 N.Y. Slip Op 08500,[2007];Jaromin v. Northrop, 39 AD3d 1264, 1265 [2007];Allen v. General Elec Co., 32 AD3d 1163, 1166 [2006];Cooper v. City of Rochester, 16 AD3d 1117, 1118 [2005] ).
New Style further argues that it cannot be held liable for negligence because it had no actual or constructive notice of the condition which lead to Orellana’s accident. New Style, however, was on notice that after 10:00 p.m or 11:00 p.m., the truck drivers would bring in the garbage (Orellana’s Dep. Transcript at 64), and that the ventilation fans were not on at that time and not turned on again until 3:00 a.m..
New Style contends, though, that Orellana’s accident was unforeseeable. It asserts that there were weekly inspections by the DOS which revealed no problems with any aspect of New Style’s business, and no citations or violations were issued referable to the ventilation system. It further asserts that there were monthly inspections by the DEC, which revealed no problems with the ventilation system. New Style also states that Orellana, for 11 years, arrived at work and turned on the light switch at 3:00 a.m., and there were no prior fires or explosions at the facility during those 11 years.
New Style contends that it could not have reasonable foreseen that Stanczak, in violation of CTI’s protocol, would throw hundreds of aerosol cans in a garbage dumpster, and that Duran, in violation of Boro-Wide’s protocol, would dump these cans into his truck, compact them, and dump them on the floor of the Grand Avenue facility. It argues that these acts by CTI and Boro-Wide’s employees were unforeseeable superseding acts which intervened and broke the chain of causal connection between any purported negligence on the part of New Style and the subject explosion. It claims that it, therefore, cannot be held liable for negligence as a matter of law and must be relieved of all liability.
In addressing this argument, the court notes that “[w]here the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed” (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980];see also Carson v. Dudley, 25 AD3d 983, 984 [2006];Litts v. Best Kingston Gen. Rental, 7 AD3d 949, 951-952 [2004];Pomeroy v. Buccina, 289 A.D.2d 944, 945 [2001] ).“In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (Derdiarian, 51 N.Y.2d at 315;see also Carson, 25 AD3d at 984;Litts, 7 AD3d at 951-952;Pomeroy, 289 A.D.2d at 945). In order to be a superseding act which breaks the causal nexus, the intervening act must be far removed from the defendant’s conduct, unforeseeable, and extraordinary under the circumstances (see Derdiarian, 51 N.Y.2d at 315).“Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve”(id.; see also Carson, 25 AD3d at 984;Litts, 7 AD3d at 951;Pomeroy, 289 A.D.2d at 945).
Here, the court cannot hold as a matter of law that the alleged negligence of CTI and Boro-Wide was a superseding cause which interrupted the link between New Style’s alleged negligence and Orellana’s injuries (see Derdiarian, 51 N.Y.2d at 328;Carson, 25 AD3d at 984;Litts, 7 AD3d at 951-952;Pomeroy, 289 A.D.2d at 945). As contended by Assured and CTI’s experts, a potential hazard associated with the failure to have the ventilation fans operating is the accumulation of vapors from the garbage deposited in the waste transfer facility. There is a question of fact as to the foreseeability of individuals dumping refuse into its waste transfer facility without ascertaining the flammable nature of the refuse. Additionally, as pointed out by Assured, while outside vendors dumped garbage into the waste transfer facility, New Style had no one at the facility to ensure that flammable items were not being placed in the facility.Thus, from the evidence in the record, a jury could find that New Style negligently failed to provide a safe work environment for its employee, Orellana, by ensuring that the ventilation fans were turned on to diffuse any gases and eliminate the resulting risk of fire and explosion caused by the deposit of refuse which conceivably could be potentially hazardous. Therefore, inasmuch as triable issues of fact exist as to whether New Style should have foreseen that refuse could be dumped into its waste transfer facility without ascertaining the hazardous nature of the refuse and whether New Style was negligent in permitting garbage to be dumped in an unventilated unsupervised waste transfer facility, New Style’s motion insofar as it seeks summary judgment dismissing the third-party action and all cross claims as against it must be denied (see Carson, 25 AD3d at 984;Litts, 7 AD3d at 951-952;Pomeroy, 289 A.D.2d at 945).
Accordingly, Assured’s motion and Demert’s cross motion for summary judgment is granted to the extent that they seek summary judgment dismissing the claims sounding in breach of warranties, negligent manufacture, and strict products liability for defective manufacture, and is denied insofar as they seek summary judgment dismissing the claims based upon failure to warn and inadequate labeling. New Style’s motion for summary judgment and an order, pursuant to CPLR 3126, dismissing CTI’s third-party complaint and all cross claims as against it, is denied; to the extent that any discovery still remains outstanding on the part of CTI, it is directed to comply with these discovery requests forthwith or sanctions may be imposed.
This constitutes the decision and order of the court.
