300 F. Supp. 1182, *; 1969 U.S.
Dist. LEXIS 8492, **
Nancy GASPERINO, as Administratrix of the Estate of Gregory Gasperino,
Deceased, Plaintiff, v. LARSEN FORD, INC., Defendant and Third-Party Plaintiff,
v. FORD MOTOR COMPANY, Third-Party Defendant
No. 65 Civ. 828
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
300 F. Supp. 1182; 1969 U.S. Dist. LEXIS 8492
June 5, 1969
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff wife filed a wrongful death action
against defendant automobile dealer based on the dealer's alleged violation of
N.Y. Labor Law § 299 by failing to provide proper ventilation, and N.Y. Labor
Law § 200 by failing to provide her husband, the decedent, with a safe place to
work. The dealer impleaded third-party defendant automobile manufacturer, the
decedent's employer.
OVERVIEW: A manufacturer made an arrangement with a dealer to store
cars in the dealer's basement storage area, which had no mechanical ventilation
system. The decedent, an employee of the manufacturer, inhaled carbon monoxide
while working in the basement. The decedent died and his wife filed a wrongful
death action against the dealer. The wife argued that the premises were used as
a factory within the meaning of N.Y. Labor Law §§ 299, 316, that the dealer
violated N.Y. Labor Law § 299 by failing to provide proper ventilation, and
that the dealer violated N.Y. Labor Law § 200 by failing to provide the
decedent with a safe place to work. The dealer denied the applicability of the
statutes and sought indemnification. The court granted damages to the wife and dismissed
the cross-claim, finding that the garage was a factory and the basement was a
workshop, the decedent was a member of the class for whose protection § 299 was
enacted, the dealer was prohibited from asserting the defense of contributory
negligence because it violated § 299, the decedent was not conscious of the
danger arising from the dealer's violation of § 299, and the dealer failed to
impute negligence to the manufacturer.
OUTCOME: The court entered a judgment against the dealer in the wife's
wrongful death action based on labor law violations. The court dismissed the
dealer's cross-claim against the manufacturer for indemnification.
CORE TERMS: basement, decedent, factory, carbon monoxide, ventilation,
labor law, plant, mechanical, workroom, impurities, oxygen, duty, cross-claim,
poisoning, garage, contributory negligence, contributed, autopsy, windows, fan,
defense of contributory negligence, safe place to work, frequenting, lawfully,
blood, dust, cause of action, contractor, pump, common law
LexisNexis(R) Headnotes Hide
Headnotes
Labor & Employment Law > Occupational Safety & Health >
Duties & Rights
HN1 N.Y. Labor Law § 299 (1965) reads in part as follows: 1. Every work
room in a factory shall be provided with proper and sufficient means of
ventilation, natural or mechanical or both, as may be necessary. 2. All
machinery creating dust or impurities in quantities tending to injure the
health of employees shall be equipped with proper hoods and pipes connected to
an exhaust fan of sufficient capacity and power to remove such dusts or
impurities; such fan shall be kept running constantly while such machinery is
in use. 3. If dust, gases, fumes, vapors, fibers or other impurities are
generated or released in the course of the business carried on in any workroom
of a factory, in quantities tending to injure the health of the employees,
suction devices shall be provided which shall remove such impurities from the
workroom, at their point of origin where practicable, by means of proper hoods
connected to conduits and exhaust fans. Such fans shall be kept running
constantly while the impurities are being generated or released. More Like This Headnote | Shepardize:
Restrict By Headnote
Labor & Employment Law > Occupational Safety & Health >
Civil Liability
Labor & Employment Law > Occupational Safety & Health >
Duties & Rights
HN2 N.Y. Labor Law § 316(1) (1965) reads in part as follows: Except as
N.Y. Labor Law § 316 otherwise provides, the person operating a factory,
whether as owner or lessee of the whole or a part of the building in which the
same is situated or otherwise, shall be responsible for the observance of the
provisions of § 316(1), anything in any lease or agreement to the contrary
notwithstanding. More Like This Headnote
| Shepardize: Restrict By Headnote
Labor & Employment Law > Occupational Safety & Health >
Duties & Rights
HN3 N.Y. Labor Law § 299 requires that each workroom in a factory be
provided with proper and sufficient means of ventilation, natural or
mechanical, as may be necessary. There is a provision that if dust, gases,
fumes, vapors, fibers, or other impurities are generated or released in the
course of the business carried on in any workroom of a factory in quantities
tending to injure the health of the employees, then suction devices must be
provided which will remove the impurities from the workroom by means of proper
hoods connected to conduits and exhaust fans. "Factory" is defined by
N.Y. Labor Law § 2(9) to include a workshop or other manufacturing
establishment where one or more persons are employed in manufacturing including
making, altering, repairing, finishing any article or thing in whole or in part
and includes all buildings, sheds, structures, or other places used for or in
connection therewith. N.Y. Labor Law § 2(7) defines "employed" to
include "permitted or suffered to work." More Like This Headnote | Shepardize:
Restrict By Headnote
Torts > Negligence > Proof of Negligence > Breach of Statute
HN4 Aviolation of N.Y. Labor Law § 299 eliminates the plaintiff's need
to show that the defendant was negligent. The legislature has cast upon the
defendant a duty not measured by the usual norm of what a reasonably prudent
man would do under the same circumstances. The duty is imposed for the special
benefit and protection of employees. The statute does not merely define the
degree of care required in that occupation. It imposes an absolute duty upon
employers to provide adequate and proper safeguards liability for disregard of
the statutory duty regardless of negligence is implied. A violation of the
duties imposed constitutes negligence as a matter of law. The statute being for
the benefit of a particular class, where one of that class is injured because
of its violation, recovery may be had irrespective of negligence on the part of
the defendant. Violation of a statute imposing a duty to furnish safeguards for
the benefit of employees is conclusive as to the negligence of the person
charged with the violation. More Like
This Headnote | Shepardize: Restrict By Headnote
Torts > Negligence > Defenses > Comparative & Contributory
Negligence
HN5 A N.Y. Labor Law § 299 violator cannot assert the defense of
contributory negligence. More Like This
Headnote
Torts > Negligence > Defenses > Comparative & Contributory
Negligence
Evidence > Procedural Considerations > Inferences &
Presumptions
Torts > Wrongful Death & Survival
HN6 In a New York State death action the burden is upon the defendant
to prove any contributory negligence by a fair preponderance of the credible
evidence. More Like This Headnote
Labor & Employment Law > Occupational Safety & Health >
Duties & Rights
HN7 N.Y. Labor Law § 200 mandates that all places to which the Labor
Law applies shall be so constructed, equipped, arranged, operated and conducted
as to provide reasonable and adequate protection to the lives, health and
safety of all persons employed therein or lawfully frequenting such
places. More Like This Headnote |
Shepardize: Restrict By Headnote
Torts > Real Property Torts > Landlord-Tenant Liabilities
Labor & Employment Law > Occupational Safety & Health >
Duties & Rights
HN8 Under N.Y. Labor Law § 200 the owner-occupant of a building has the
affirmative obligation of providing a place safe for the work of the employees
of an independent contractor properly on the premises. More Like This Headnote | Shepardize:
Restrict By Headnote
COUNSEL: [**1]
Greenspan & Aurnou, by Joel Aurnou, White Plains, New York, for
plaintiff.
Schaffner & D'Onofrio, by Purdy, Lamb & Cattagio, New York, New
York, Edmund F. Lamb, New York City, of counsel, for defendant.
Daniel J. Coughlin, New York, New York, by John McKiernan, New York,
New York, of counsel, for third-party defendant.
JUDGES: Edelstein, District Judge.
OPINIONBY: EDELSTEIN
OPINION: [*1184] EDELSTEIN, District Judge.
This is a wrongful death action commenced by Mrs. Nancy Gasperino as
the duly authorized administratrix of the Estate of Gregory Gasperino,
deceased, against Larsen Ford, Inc., defendant and third-party plaintiff.
Larsen has impleaded Ford Motor Co. Decedent, Gregory Gasperino, was at all
relevant times an employee of the third-party defendant, Ford Motor Co.
(hereinafter Ford) employed as an assistant district service manager. The court
has jurisdiction of the parties and the subject matter of this action by reason
of diversity of citizenship and an amount in controversy in excess of
$10,000.00 exclusive of interest and costs.
On April 6, 1964, the day decedent met his death, he was working in the
basement of the premises of defendant Larsen Ford, Inc. (hereinafter [**2] Larsen).
In the spring of 1964 the Ford Motor Co. introduced to the public for
the first time a new model Ford known as the Mustang. Between the time of the
arrival of these cars in New York from Detroit and the date for their first
public showing Ford desired to keep this new model from public view for special
promotional reasons. Lacking an indoor area capable of keeping some one hundred
of the new cars under wraps, Ford made an arrangement with Larsen, a Ford
dealer, to store the new cars in Larsen's basement storage area. Certain
"make-ready" work was to be done on the Mustangs prior to the first
public showing and Larsen knew of this fact. The task of readying these
Mustangs for public viewing fell on decedent Gasperino [*1185]
and five co-workers, all of whom were highly qualified for their tasks.
He was notified of his assignment on April 3, 1964, and proceeded to the
premises of Larsen that same day to commence work on the Fords. Inasmuch as
Ford planned to show the cars on April 14th decedent was forced to work on
Friday, April 3rd, from 8:30 a.m. until 2:00 a.m., on Saturday, April 4th, and
Sunday April 5th from 8:30 a.m. until 5:30 p.m., as well as on Monday, [**3]
April 6th, from 8:30 a.m. until he was stricken, at approximately 2:30
in the afternoon.
During the course of the preparation and pre-delivery check-up on the
cars it was necessary to start and stop the engines of these vehicles in order
to jockey them into position so that the necessary preparations could be done
on the cars. Larsen knew, or should have known, of this fact, inasmuch as there
were one hundred and thirty automobiles (100 of which were new Mustangs)
enclosed in the basement area of some 20,000 square feet.
The basement area of Larsen Ford in which the decedent and his fellow
employees were working was provided with no mechanical ventilation, fans,
ducts, pipes, hoses, or any other mechanical means of extracting gases, vapors
or fumes from the atmosphere in the basement.
Returning specifically to the events that occurred on April 6th,
decedent was noticed slouched over in an automobile in the basement at
approximately 2:30 p.m. Fellow employees, Fausel and Fritts, assisted him
outside into the fresh air and observed that decedent was shaky, sweating excessively,
and appeared to be in severe physical discomfort. At about the same time Fausel
and Fritts also suffered [**4] nausea,
dizziness, and weakness. The police were summoned and an officer responded
immediately and administered between ten and fifteen minutes of oxygen to the
decedent. In addition oxygen was administered to Fausel and Fritts, Gasperino's
fellow employees. Decedent appeared revived after this administration of oxygen
but shortly thereafter he complained of pains in his chest and was promptly
taken to a nearby local hospital. At the hospital oxygen was again administered
to Gasperino for not less than ten minutes. At approximately 3:50 p.m. that
day, decedent died. An autopsy was performed the following day. The report of
the autopsy stated that the cause of death was an atheromatous occlusion of the
coronary arteries due to atherosclerosis. A subsequent toxicological
examination of the blood sample disclosed a residue of 13.6 percent of carbon
monoxide in the decedent's blood after death.
Plaintiff called Dr. David H. Goldstein, a qualified toxicologist, to
give his opinion of the cause of Gasperino's death. Based on an assumption of
divers facts in evidence surrounding Gasperino's death, such as the working
conditions in Larsen's basement storage area, the work that was [**5] being done there, the conditions of
ventilation, the illness that beset Gasperino, the administration of oxygen to
him, and, thereafter, the autopsy and toxicological report, Dr. Goldstein
testified that Gasperino had inhaled enough carbon monoxide gas to cause him to
suffer carbon monoxide poisoning, which poisoning in turn precipitated his
fatal heart attack.
Although the autopsy disclosed a preexisting progressive
atherosclerotic heart disease it was uncontradicted that the decedent had no
prior history of complaints of heart disease, no coronary profile, and was
sufficiently well compensated to perform his normal duties without complaint up
to the time he was stricken on April 6, 1964.
The Westchester County Coroner, Dr. Bultman, who had performed the
Gasperino autopsy was also called to testify as a witness. Dr. Bultman
generally shared Dr. Goldstein's opinion. Dr. Bultman's testimony - that the
carbon monoxide in decedent's blood contributed in part to decedent's death and
was indeed a direct proximate cause of his death - remained unshaken, despite a
vigorous attempt on cross examination
[*1186] to show that this
testimony was inconsistent with his autopsy report. The [**6] court found the coroner to be an entirely
impartial and believable witness. Accordingly, the court places great weight on
his testimony. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 A letter of one Joseph Dean Edwards addressed to a Gerard S. Foley
of Ford, and a report entitled "Workmen's Compensation Investigation
Report" were received in evidence subject to a motion to strike. Since
both of these documents are at best cumulative the court found no need to
consider them.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The record is replete with testimony as to the percentages of carbon
monoxide in the blood which would cause symptoms of carbon monoxide poisoning
or cause instant death. Likewise, much testimony was introduced to explain the
amount of pure oxygen and oxygen plus natural air needed to dilute the
percentage of carbon monoxide in decedent's bloodstream to 13.6 percent, the
amount found in Gasperino's blood after his death. An analysis of these figures
would serve no useful purpose. Since no countervailing medical or scientific
testimony was adduced the medical testimony presented [**7] to this court that Gasperino died of an
atheromatous occlusion of the coronary arteries (a heart attack) which
occlusion was proximately triggered by carbon monoxide poisoning, stands
uncontradicted.
Plaintiff's first legal argument is that the premises of Larsen Ford
were in use as a factory within the meaning of §§ 299 and 316 of the Labor Law
of the State of New York, n2 that on April 6th the basement area in which the
decedent was working was a workroom in defendant's factory within the meaning
of § 299 of that law, that the decedent on that date was a person within the
class intended to be protected by §§ 299 and 316 of that law, and that
defendant Larsen Ford violated § 299 by failing to provide mechanical
ventilation as required therein. His second legal argument is that Larsen
violated § 200 of the Labor Law by failing to provide decedent with a safe
place to work. Larsen denies the applicability of these statutes to the facts
of the case in hand, and in any event, cross claims against Ford Motor Co.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 HN1N.Y. Labor Law § 299 (McKinney's Consol. Laws, c. 31, 1965) reads
in part as follows:
"1. Every work room in a factory shall be provided with proper and
sufficient means of ventilation, natural or mechanical or both, as may be
necessary * * *.
"2. All machinery creating dust or impurities in quantities
tending to injure the health of employees shall be equipped with proper hoods
and pipes connected to an exhaust fan of sufficient capacity and power to
remove such dusts or impurities; such fan shall be kept running constantly
while such machinery is in use. * * *
"3. If dust, gases, fumes, vapors, fibers or other impurities are
generated or released in the course of the business carried on in any workroom
of a factory, in quantities tending to injure the health of the employees,
suction devices shall be provided which shall remove such impurities from the
workroom, at their point of origin where practicable, by means of proper hoods
connected to conduits and exhaust fans. Such fans shall be kept running
constantly while the impurities are being generated or released. * * *"
HN2N.Y.Labor Law § 316 (McKinney 1965) reads in part as follows:
"1. Except as in this article otherwise provided, the person
operating a factory, whether as owner or lessee of the whole or a part of the
building in which the same is situated or otherwise, shall be responsible for
the observance of the provisions of this article, anything in any lease or
agreement to the contrary notwithstanding."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**8]
HN3Section 299 of the Labor Law of New York requires that each workroom
in a factory be provided with proper and sufficient means of ventilation,
natural or mechanical, as may be necessary. There is a provision that if dust,
gases, fumes, vapors, fibers, or other impurities are generated or released in
the course of the business carried on in any workroom of a factory in
quantities tending to injure the health of the employees, then suction devices
must be provided which will remove the impurities from the workroom by means of
proper hoods connected to conduits and exhaust fans.
"Factory" is defined by § 2(9) of the Labor Law to include a
workshop [*1187] or other manufacturing establishment where
one or more persons are employed in manufacturing including making, altering,
repairing, finishing * * * any article or thing in whole or in part and
includes all buildings, sheds, structures, or other places used for or in
connection therewith. Section 2(7) of that law defines "employed" to
include "permitted or suffered to work." Thus by statutory definition
the court concludes that Gasperino was employed in Larsen's basement since it
is clear that he was "permitted or suffered" [**9]
to work there at the time of his accident. Likewise, by statutory
definition, the court concludes that Larsen's garage was a factory and that the
basement premises of that garage was a workshop therein at that time.
It is conceded by defendants that there were no mechanical exhaust or
ventilation systems in the basement. It is also conceded that Larsen, as lessee
of the premises stood in the shoes of an owner of those premises. Indeed,
Larsen actively operated and controlled those premises in the conduct of his
business.
Larsen had actual knowledge that the Mustangs were being prepared for
public exhibition. It knew, or should have known, based on its experience, that
they were being jockeyed back and forth under their own power. Altogether it
was aware of the operation which was being performed on its premises with its
consent and for a consideration. The basement area in which Gasperino was
working was an integrated part of Larsen's total physical plant. This total business
facility was used in its entirety in the manifold operations incidental to
Larsen's business. The court finds that Larsen was a person operating a factory
within the meaning of § 316(1).
Defendant [**10] urges, however,
that plaintiff may not predicate liability on defendant based on § 299 because
that section is limited exclusively to the protection of employees and that it
imposes obligations only upon the employers of these employees. Thus, in the
instant case, defendant argues that only if Gasperino had been an employee of
Larsen Ford in the accepted employer-employee relationship would Larsen Ford
have had duties and obligations running to him under § 299. n3 But the
protection afforded by § 299 is not so narrowly limited.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 It is conceded that Gasperino was not an employee of Larsen Ford as
that term is usually employed, that he received no salary or remuneration from
Larsen, and that Larsen had no control of Gasperino or say in the manner in
which Gasperino was to discharge his duties.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Defendant places much reliance on the 1940 case of Savage v. Mathieson
Alkali Works, 174 Misc. 1022, 22 N.Y.S.2d 692 (Sup.Ct. Niagara County 1940),
aff'd without opinion 261 App.Div. 1053, 27 N.Y.S.2d 454 (4th Dept.1941).
[**11] In that § 299 case plaintiff,
Savage, was an employee of DuPont; DuPont was in no way involved in the suit.
Savage was injured at a place removed from defendant's premises. Indeed, the
plaintiff never even entered defendant's factory. In dismissing his § 299 claim
the court said, inter alia, "The plaintiff does not allege that he was an
employee of the defendant; he alleges that he was an employee of E. I. DuPont
De Nemours Company, Inc. in an industrial plant located in close proximity to
the premises of the defendant. The plaintiff charges the defendant with
violation of statutes prescribing conditions to be maintained within the
interior of the defendant's factory. Labor Law, §§ 290, 299, subd. 1. In so far
as such statutes relate to the atmospheric and other working conditions in the
defendant's factory, they are for the protection of the employees of the
defendant and a violation of them creates under certain circumstances, a cause
of action in favor of employees of the defendant and no others. Schmidt v.
Merchants Despatch Transportation Company, 270 N.Y. 287, 200 N.E. 824, 104
A.L.R. 450." At 695. The lack of
[*1188] nexus between plaintiff
and defendant in [**12] Savage
distinguishes it from the instant case so as to make Savage not particularly
helpful.
More apposite than Savage is McCullough v. National Dairy Products
Corp., 12 Misc.2d 778, 177 N.Y.S.2d 435 (Sup.Ct.Erie Co.1958). There, plaintiff,
an employee of Lincoln Carting Company, not a party to this action, drove
Lincoln's truck to defendant's plant to make a delivery under a contract of
delivery between Lincoln and defendant. At defendant's plant the plaintiff
proceeded to unload the syrup by use of an auxiliary gasoline motor and pump
supplied and owned by plaintiff's employer. Plaintiff, as a result, died of
carbon monoxide poisoning. His administratrix brought suit under §§ 200 and
299. Although the court dismissed the complaint, it was careful to point out
that the cause of death was a defect in the contractor's (the plaintiff's
employer) motor and pump. There was no defect in the plant of the defendant.
"The contractor, Lincoln Carting Company, was bound by contract to
furnish all instrumentalities by which the sweetose was to be transported and
delivered; there was no defect in the 'garage and loading room'; it was not
unsafe qua garage; the [**13] work
contracted for was not necessarily dangerous; the danger arose from the method
by which the sweetose was unloaded into defendant's storage tank; the defect
was in the contractor's outfit, consisting of 'an auxiliary gasoline motor and
pump,' and not in the plant of the defendant. Therefore the second cause of
action in the complaint fails to state a cause of action." At 437.
The crucial difference between McCullough and the instant case is that
the plant, i.e., the basement premises of Larsen, was defective. It is not a
question of whether Gasperino's equipment was defective, but that the
facilities in which he worked were unsuited for the purposes for which they
were used. As the Court of Appeals said in Hess v. Bernheimer & Schwartz,
Pilsener B. Co., 219 N.Y. 415, 114 N.E. 808 (N.Y.1916), "'A plant is
defective when any part of it is not in a proper condition for the purpose for
which it was intended.'" at 418, 114 N.E. at 808. Finally, it can be seen
upon reflection that § 299 was designed to protect workingmen who work in
factories; Gasperino was such a workman. There can be no question, then, that
Gasperino was a member of the class for whose [**14] protection § 299 was enacted. Osborne v.
Salvation Army, 107 F.2d 929 (2d Cir.1939).
HN4A violation of § 299 eliminates the plaintiff's need to show that
the defendant was negligent. As the Court of Appeals said in Schmidt, "The
Legislature has cast upon the defendant a duty not measured by the usual norm
of what a reasonably prudent man would do under the same circumstances. The
duty is imposed for the special benefit and protection of employees * * *. The
statute does not merely define the degree of care required in that occupation.
It imposes an absolute duty upon employers to provide adequate and proper
safeguards * * * liability for disregard of the statutory duty regardless of
negligence is implied * * *." At 303-306, 200 N.E. at 829. Accord,
Michalek v. U.S. Gypsum Co., 16 F. Supp. 708 (W.D.N.Y.1936) "a violation
of the duties imposed constitutes negligence as a matter of law. * * * The
statute being for the benefit of a particular class, where one of that class is
injured because of its violation, recovery may be had irrespective of
negligence on the part of the defendant." At 709; Kolenko v. Certainteed
Prod. Corp., 20 F. Supp. 920 (W.D.N.Y.1937) "Violation of [**15] a statute imposing a duty to furnish
safeguards for the benefit of employees is conclusive as to the negligence of
the person charged with the violation." At 921.
Another problem in a § 299 case is whether or not the defense of
contributory negligence is a bar to the action.
[*1189] It would appear not,
although there is some authority for the proposition that contributory
negligence might or may be a bar to a § 299 action, see Kolenko & Michalek,
supra. Since the statute is designed to impose an absolute duty for the
protection of a class of persons against definable hazards which they
themselves are incapable of avoiding, see Schmidt, supra; cf. Osborne, supra;
Koenig v. Patrick Construction Corp., 298 N.Y. 313, 83 N.E.2d 133 (1948), n4 it
would seem contrary to the purpose of § 299 to permit contributory negligence
to serve as a defense to this kind of action.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Cf. Federal Employers Liability Act, 45 U.S.C. § 53,
"Contributory negligence; diminution of damages, * * * [No] such employee
who may be injured or killed shall be held to have been guilty of contributory
negligence in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the injury or death
of such employee."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**16]
Judge Fuld, writing for a unanimous court in Koenig, although
discussing a provision of the labor law different from the one involved here,
laid down general principles particularly well applicable to a discussion of §
299:
"Irrespective of how the courts may once have viewed the question
* * * it is our judgment that both sound reason and persuasive decisions,
involving statutes whose content and purpose are similar to those of section
240, require the conclusion that that statute does not permit the worker's
contributory negligence to be asserted as a defense." Koenig at 317, 831
N.E.2d at 134.
The court is convinced that HN5a § 299 violator cannot assert the
defense of contributory negligence. Sec. 299 aside, however, defendant's claim
of contributory negligence against Gasperino still cannot prevail. HN6In a New
York State death action the burden is upon the defendant to prove any
contributory negligence by a fair preponderance of the credible evidence. n5
The defendant has failed to carry its burden. Given the facts here, the court
cannot say that Gasperino failed to use due care and ordinary prudence in
avoiding injury to himself, nor that he failed to make [**17] reasonable use of his faculties to discern
and avoid any dangers in the performance of his job. Gasperino was on Larsen's
premises with its consent and permission. The basement location was not
affirmatively selected by Gasperino, nor did Gasperino have any personal choice
or say in the arrangements between Ford and Larsen. In fact, the basement
location was designated and made available to Ford by Larsen. This location
consisted of approximately 20,000 square feet, approximately one-half an acre.
There was an 8 X 9 foot overhead door leading outside at the basement level,
and an 18 foot wide ramp leading up to the main floor and outside through a 10
X 12 foot overhead door. In addition along the north side of the basement there
were a series of 14 manually operated casement windows having dimensions of 6 X
6 feet; along the south wall there were more windows. Some of these windows had
broken panes of glass and some of the other windows were covered with plastic
sheets. Altogether the premises presented an illusion of a safe place in which
to work, when, in fact, it was not safe at all. Its appearance was so deceiving
as to be able to mask successfully a very dangerous condition. [**18]
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 17B McKinney's EPTL § 5-4.2.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The garage's deceptively dangerous condition could hardly have been
realized in the exercise of ordinary prudence and discretion. It is indeed
doubtful that the danger of carbon monoxide poisoning became apparent until
Gasperino and two of his co-workers were stricken, and perhaps not even then.
In sum, what the record reveals to this court is that Gasperino asserted that
degree of care which others of his type and position would ordinarily exercise
under comparable conditions and circumstances.
[*1190] Cases - relied on by defendant - such as
Townes v. Park Motor Sales, 7 A.D.2d 109, 180 N.Y.S.2d 553 (1st Dept.1958)
aff'd. 7 N.Y.2d 767, 194 N.Y.S.2d 37, 163 N.E.2d 142 (1959) are hopelessly
inapplicable to the facts in this case. Critical to the court's finding in
Townes was that the plaintiff was conscious of a danger arising from the
negligence of another. It is beyond doubt in the instant case that Gasperino
was not conscious of the danger arising from Larsen's [**19] violation of § 299.
For the court to find that Gasperino was contributorily negligent under
all the circumstances of this case would require a rejection of all the
credible evidence which preponderates in Gasperino's favor.
Section 200
HN7Sec. 200 of the Labor Law mandates that "all places to which
this chapter applies shall be so constructed, equipped, arranged, operated and
conducted as to provide reasonable and adequate protection to the lives, health
and safety of all persons employed therein or lawfully frequenting such
places."
This court concluded, supra, that the basement of the Larsen garage was
a workroom in a factory as that term is used in the Labor Law, and that Larsen
stood in the position of an owner. It is clear that HN8under § 200 "the
owner-occupant of a building has the affirmative obligation of providing a
place safe for the work of the employees of an independent contractor properly
on the premises." Gasper v. Ford Motor Co., 11 A.D.2d 902, 203 N.Y.S.2d 382
(4th Dept.1960). Accord, Seigel v. Prima Concrete Construction Corp., 27 A.D.2d
946, 279 N.Y.S.2d 95 (1967).
Although it is clear that the courts of New York have constantly
construed § 200 as [**20] a codification
of the Common Law in regard to the obligations of an employer to provide
employees and other persons lawfully frequenting the premises with a safe place
to work, n6 it is equally clear that decedent Gasperino was lawfully
frequenting Larsen's premises and was not a trespasser therein. In addition,
Carl Larsen himself admitted that he did not allow his own employees to use the
basement portion of his premises for mechanical or make-ready operations on
automobiles. In addition, it is undisputed that prior to the 6th of April 1964
Larsen had suffered or permitted some windows to be covered with a plastic
material in these premises further decreasing natural ventilation, and,
concededly, there were no mechanical ventilation facilities in the basement. It
is clear on the basis of all the credible evidence that Larsen knew that in the
course of the operations on these automobiles that the automobiles would be
moved on their own power and that the engines would be running. Yet Larsen at
no time warned the decedent or his colleagues of the danger that could develop
in the basement even though it never would allow its own employees to perform
similar work in this area. This [**21]
court finds, therefore, that on all of the evidence that defendant
Larsen did not comply with § 200 n7 of the Labor Law reinsofar as it did not
provide a reasonably safe place for persons lawfully frequenting his premises.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 See Zinsenheim v. Congregation Beth David Inc., 10 A.D.2d 501, 200
N.Y.S.2d 753 (1960); Bein v. City of New York, 271 F. Supp. 542 (S.D.N.Y.1967).
n7 That the defense of contributory negligence is available in a § 200
violation is not important in this matter because the court has found that
Gasperino was not contributorily negligent. Insofar as § 200 allows a defense
of contributory negligence and § 299 does not, it is explicable in that § 200
represents a codification of the common law whereas § 299 expands the common
law. See Bein, supra.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Cross-Claim
Defendant, Larsen Ford, cross-claims against the Ford Motor Company in
the [*1191] event that it (Larsen Ford) is found liable
to Gasperino. This court, having found Larsen liable to Gasperino must now
consider [**22] the cross-claim. The
essence of Larsen's argument is that the Ford Motor Company was the active
tortfeasor in this case and that accordingly Larsen should be able to obtain
indemnity because it was at most merely a passive tortfeasor.
To give credence to Larsen's cross-claim this court would have to
ignore its crucial findings that Larsen violated §§ 200 and 299 of the Labor
Law of New York insofar as it failed to provide the plaintiff with a safe place
to work, failed to provide the required and appropriate ventilation facilities,
and that Gasperino was in no way negligent. The court therefore finds that
Larsen was the active tortfeasor if those words have any meaning at all.
The recent case of Burns v. Cunard S.S. Co., 404 F.2d 60 (2d Cir. 1968)
is analogous to the instant case. There the plaintiff, employee of John T.
Clark & Son, was injured when the wheel of a car he was towing went into a
hole in the pavement of a work area of Cunard. The Clark firm had been employed
by Cunard to remove cargo from one of the latter's vessels. The court in
holding that Cunard did not have a claim over against Clark said: "Under
N.Y. Labor Law § 200, Cunard had a duty to inspect the area [**23] and to repair the hole, since a reasonable
inspection would have disclosed its existence. Cunard's failure to do so was
active negligence and thus it cannot obtain indemnity from Clark." (at
61.) In the instant case Larsen failed to supply the needed ventilation
facilities and a safe place to work, even though it knew, or should have known,
that automobile engines would be running. The fact that the violation in issue
is a result of an act of omission rather than an act of commission is utterly
immaterial. Bush Terminal Bldgs. Co. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 214
N.Y.S.2d 428, 174 N.E.2d 516 (1961).
Wholly different are the many cases in which the accident occurred not
because of a defect in defendant's plant but because the plaintiff used unsafe
materials not under the control or supervision of the defendant. Gasper v. Ford
Motor Co., 13 N.Y.2d 104, 242 N.Y.S.2d 205, 192 N.E.2d 163 (1963); Wallach v.
United States, 291 F.2d 69, cert. denied 368 U.S. 935, 82 S. Ct. 373, 7 L. Ed.
2d 197; McFall v. Compagnie Maritime Belge (Ibyd Royal S.A.), 304 N.Y. 314, 107
N.E.2d 463 (1952).
Defendant's reliance on Jackson v. Associated Dry Goods Corp., 13
N.Y.2d 112, 242 N.Y.S.2d 210,
[**24] 192 N.E.2d 167 (1963), is
misplaced. There the plaintiff was injured when she fell over loose gravel in
defendant's parking lot. The defendant cross-claimed against the Posillico
Construction, Inc. The Court of Appeals held that the cross-claim would lie
because the defendant could not be guilty of active negligence solely because
it had constructive notice of the rocks in the driveway. Posillico, however,
was unquestionably and undeniably negligent in that case because the rocks were
left over from construction work done by Posillico for Nassau County.
In the case at bar, however, Larsen has failed to impute any negligence
to Ford via the acts of Ford's employees.
Defendant Larsen's attempt to show that it had not violated a
"non-delegable duty statute" like § 241 of the Labor Law, is
irrelevant. Defendant cites Semanchuck v. Fifth Avenue and 37th Street Corp.,
290 N.Y. 412, 49 N.E.2d 507, (1943) and Wischnie v. Dorsch, 296 N.Y. 257, 72
N.E.2d 700 (1947). Analogized to the facts of the instant case the most that
these cases could stand for is the proposition that if Ford were negligent
Larsen in the appropriate factual setting could obtain indemnity from Ford.
Ford, however, [**25] was not negligent. Accordingly, Semanchuck
and Wischnie do not help the defendant.
[*1192] The cross-claim over must fail. Defendant
Larsen must bear the consequences of its violation of §§ 200 and 299 alone.
Damages
The provable damages supported by a preponderance of the evidence are
as follows:Estimated pecuniary benefits from earnings already
lost to date of judgment. n8 $51,100.00
Estimated present value of future lost
benefits from decedent's earnings
(discounted at 5 percent). 139,000.00
Estimated value of personal services
and attention which decedent would
have given to and which would have
been of material value to his family. 24,000.00
Funeral expenses. 1,799.00
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 The discount is not applied to periods antedating judgment.
Montellier v. United States, 202 F. Supp. 384, 424 (E.D.N.Y.) aff'd 315 F.2d
180 (2d Cir. 1963.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
At the time of his death, Gasperino, then at age 46, had a life
expectancy of 26.3 years and a work expectancy of 18.8 years. [**26]
For each of the five years directly preceding his death Gasperino had
earned an average of approximately $10,000.00, and, based upon his excellent
past record, Gasperino could look forward to earning in the future increased
amounts resulting from merit and promotional increases. The evidence adduced at
the trial also indicates that Gasperino contributed the whole of his salary to
his family except for $15.00 each week which he required for personal use.
Accordingly, this court finds that from the time of his death until the date of
this judgment, Gasperino would have earned $55,000.00 and would have
contributed $51,100.00 of that amount to his family. Based upon a consideration
of Gasperino's life expectancy, his work qualifications, his income and
prospects and his practice in respect to supporting his family, the court finds
that during the course of the remainder of his work expectancy (approximately
fourteen years), Gasperino would have earned $212,708.00, and would have
contributed $202,000.00 of that amount to his family. The present value of
$202,000.00 discounted at an interest rate of 5 percent comes to $139,000.00.
Thus, this court finds that plaintiff is entitled to [**27] a total of $190,100.00 for the amount of
contribution Gasperino would have made to his family had he been permitted to
enjoy the years of life to which he normally could have looked forward.
In addition to the value of the lost contributions, the plaintiff is
entitled to recover on behalf of the children for the loss of parental care and
guidance, provided that there be evidence of the fitness of the parent and that
the children have been deprived of the advantages of a good parental
relationship and strong father image. The record is abundantly clear that
Gasperino was a good father; he was diligent and attentive to the needs of his children.
He spent much time with them and personally trained his sons in the skills of
his trade. Had Gasperino been able to enjoy the full span of his life he would
have been able in his role as a father to continue to guide and assist in the
moral and educational upbringing of his children. While it is difficult to fix
a precise mathematical decimal point value for the deprivation of this parental
care and guidance, nevertheless the deprivation of intellectual, moral, and
physical training suffered by the children is such as to admit of an evaluation
[**28] based on an estimate of the
reasonable value of the loss involved.
[*1193] The court finds, in view
of the close relationship that existed between Gasperino and his three
children, that Judith Gasperino (aged 19 at the time of father's death) is
entitled to $2000.00; that Gregory Gasperino (aged 17 at the time of father's
death) is entitled to $4000.00; and that Anthony Gasperino (aged nearly 12 at
the time of father's death) is entitled to $18,000.00. In sum, the court finds
that $24,000.00 is a reasonable award for the deprivation suffered by
decedent's children.
Finally the plaintiff is entitled to funeral expenses incurred on
Gasperino's behalf in the amount of $1799.00.
Thus, the court finds that the total amount of the damages sustained by
the beneficiaries of Gregory Gasperino to be $215,899.00 plus interest of
$64,770.00. Judgment in the amount of $280,669.00 is to be entered solely
against Larsen Ford, Inc. Accordingly, the claim over against Ford Motor
Company fails in all respects.
The foregoing constitutes the findings of fact and conclusions of law
of the court under Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.
So ordered.