426 F.2d 1151, *; 1970 U.S. App. LEXIS 9069, **
Nancy GASPERINO, as Administratrix of the Estate of Gregory Gasperino,
Plaintiff-Appellee, v. LARSEN FORD, INC., Defendant and Third-Party
Plaintiff-Appellant, v. FORD MOTOR COMPANY, Third-Party Defendant-Appellee
No. 302, Docket No. 33891
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
426 F.2d 1151; 1970 U.S. App. LEXIS 9069
November 18, 1969, Argued
May 25, 1970, Decided
DISPOSITION: [**1]
Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant employer, an automobile dealer, appealed
the judgment of a federal district court (New York), which was entered in favor
of plaintiff executrix in her negligence action under N.Y. Lab. Law § 299 for
the wrongful death of her husband while employed by defendant.
OVERVIEW: The husband of plaintiff administratrix suffered a fatal
heart attack while working for defendant employer, a car dealership. In
plaintiff's wrongful death action against defendant, the trial court found in plaintiff's
favor based on overwhelming evidence that the proximate cause of the decedent's
death was carbon monoxide poisoning, and that defendant's knowing failure to
provide a means of exhausting carbon monoxide from the basement area where the
decedent worked resulted in denying protection to the decedent in violation of
defendant's duty under N.Y. Lab. Law § 299. The trial court further held that
the decedent was not contributorily negligent, and that defendant's
non-compliance with the statutory duty was active negligence, which barred
defendant's claim to indemnity from third-party defendant automobile
manufacturer. On appeal, the court affirmed and held that the record fully
supported the trial court's findings because there clearly existed in defendant's
basement a deceptively dangerous condition. The court held that the damages
amount, which appeared excessive at first, was well supported by the trial
judge's detailed basis for its computation.
OUTCOME: The court affirmed the federal district court's judgment for
plaintiff executrix in her action against defendant employer for the wrongful
death of her husband, an employee of defendant's car dealership, because the
record fully supported the findings that defendant's active negligence
constituted a breach of its duty to provide a safe workplace, that the decedent
was not contributorily negligent, and that the amount awarded was not
excessive.
CORE TERMS: basement, co-employees, carbon monoxide, ventilation,
exhaust, trier, excessive, Labor Law, failed to provide, active negligence,
mechanical, poisoning, observe, removal, workman, factory, storage, bumper,
fumes
JUDGES: Lumbard, Chief Judge, Anderson, Circuit Judge, and Danaher,
Senior Circuit Judge. *
* John A. Danaher, Senior Circuit Judge of the District of Columbia
Circuit, sitting by designation.
OPINIONBY: DANAHER
OPINION: [*1152] DANAHER, Senior Circuit Judge:
It will suffice for present purposes to summarize the background. In
April, 1964 Ford Motor Company (hereinafter Ford), caused to be delivered to a
storage basement owned by its dealer Larsen Ford, Inc. (hereinafter Larsen),
approximately one hundred new Mustang model cars. Ford desired that the new
models be secluded from public view while a promotional campaign was being perfected.
It had been arranged that Larsen was to receive a substantial consideration for
the use of its premises. Larsen already had some thirty cars of its own in the
basement so that after delivery of the new Mustangs, cars were tightly parked
in rows, side by side, and bumper to bumper.
To ready the cars for public showing on April 14, Gregory Gasperino, an
employee of Ford, proceeded to the Larsen basement garage on April 3, 1964. He
worked long hours over the next few days, including Saturday, April 4 and
Sunday, April 5. Joined [**2] by other
Ford employees, Gasperino resumed work on Monday morning, April 6, 1964, and
was so employed when, about 2:30 P.M., he collapsed. Police were called, oxygen
was administered to Gasperino and to two of his co-employees, but at 3:50 P.M.,
after removal to a hospital, Gasperino died. An autopsy disclosed that the
cause of death was an occlusion of the coronary arteries induced by carbon
monoxide poisoning, superimposed upon a pre-existing, but previously unknown, atherosclerosis.
The medical evidence was uncontroverted. The record overwhelmingly supports
Judge Edelstein's conclusion that the proximate cause of death was carbon
monoxide poisoning which precipitated the fatal heart attack.
The operations in which Gasperino and his co-employees were engaged
included installation of wheel covers and of radio antennas, removal of chucks
or blocks which had fastened the cars to carriers, [*1153]
and the checking of fluid levels. The engine of each car had to be
started in order to jockey each car into position to afford room to carry out
the required operations. The result, as one witness put it, was that there
"was quite a bit of raw exhaust fumes in the air."
The Larsen [**3] basement had no
mechanical ventilation. Indeed Larsen personnel had been forbidden to work in
the basement storage area. Moreover, the Larsen mechanics in the dealership's
shop upstairs were protected by necessary hoses and exhaust systems. Carl
Larsen, President of Larsen Ford, Inc., knew that the Mustangs were to be
prepared for public exhibition and was aware of the nature of the operation to
be performed on its premises.
Under such circumstances, the district judge as the trier of fact found
that Larsen's knowing failure to provide means of exhausting carbon monoxide
from the basement area had resulted in denying protection to Gasperino and his
co-employees, and accordingly he concluded that Larsen had violated the duty
imposed upon it pursuant to section 299 of the Labor Law of the State of New
York, McKinney's Consol. Laws, c. 31. n1 Judge Edelstein reasoned that the
basement area, within the meaning of section 299, had become a "work room
in a factory" as to which Larsen was bound to provide "proper and
sufficient means of ventilation." The trier thus viewed section 299 as
designed to protect workingmen in "factories," and decided that
Gasperino as such a workman was a member [**4]
of the class for whose protection the statute had been enacted. n2
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n1 Gasperino v. Larsen Ford, Inc., 300 F. Supp. 1182, 1186, note 2, and
accompanying text.
n2 Without hesitancy we could agree had Gasperino been employed by
Larsen. Cf. Osborne v. Salvation Army, 107 F.2d 929 (2d Cir. 1939). We have
been cited to no decision of the New York Court of Appeals, and our diligent
search has disclosed none, which holds that § 299 applies to a workman employed
by other than the owner or lessee of the building in which operations are being
conducted.
We think it unnecessary further to consider Judge Edelstein's appealing
treatment of this aspect of the case, for we are satisfied that the judgment
must be affirmed upon his alternative conclusion that section 200 of the Labor
Law here applied.
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It was conceded that there were no mechanical ventilating systems in
the basement work area. Thus, the trial judge additionally found that Larsen,
while aware of the operations to be performed,
[**5] had failed to provide means
of ventilation to exhaust the carbon monoxide generated during the course of
readying the cars, and so had failed to provide a safe place in which Gasperino
and his co-employees could work. Judge Edelstein concluded that such failure
constituted a violation of section 200 of the Labor Law of New York, and
further that non-compliance with the statutory duty so devolving upon Larsen
was active negligence which barred Larsen's claim to indemnity from Ford. We
agree.
Section 200 clearly applied for the benefit of all persons employed in
the Larsen premises or "lawfully frequenting such places." Larsen was
quite aware of the purposes for which the work area was to be utilized by the
Ford employees. The trier further found, fully supported in the record, that
there existed in the Larsen basement a "deceptively dangerous
condition." Lacking ventilation, indeed with some of the windows covered
with plastic sheets, with car after car emitting exhaust fumes, there was no
evidence that the dangerous conditions prevailing were open and obvious. On the
contrary, it would strain credulity to assume that Gasperino and his
co-employees, n3 all experienced workers,
[**6] would still have continued
to conduct [*1154] the required operations had they been aware
of the threat to their safety. n4
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n3 There were at least five men engaged in the operations, each individual
working independently of the other, moving out cars "as we needed them to
work on them."
n4 Quite apart from Judge Edelstein's finding, it reasonably may be
presumed that the deceased Gasperino acted with due care in view of the human
instinct of self-preservation and the natural disposition of people to avoid
personal harm. Cf. Eastern Air Lines v. Union Trust Company, 95 U.S.App.D.C.
189, 221 F.2d 62, 72 (1955).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Recognizing Larsen's duty to provide a safe place to work within the
meaning of section 200, and accepting the trier's finding that Gasperino was
not contributorily negligent, such circumstances require us to sustain Judge
Edelstein's ultimate conclusion that Larsen's failure in the respects noted
constituted active negligence. n5 Our disposition of this case must be deemed
controlled [**7] by our decision in
Burns v. Cunard Steamship Company, 404 F.2d 60 (1968), cert. denied, 393 U.S.
1117, 89 S. Ct. 993, 22 L. Ed. 2d 122 (1969).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 The trier found that Gasperino "was in no way negligent,"
and that Larsen "was the active tortfeasor if those words have any meaning
at all." 300 F. Supp. at 1191.
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We fairly should observe that the record here discloses a case
extremely well tried by respective counsel. Judge Edelstein's detailed findings
obviously took into account the claims of the parties on the various aspects
advanced before him. In the respects which we have accepted as decisive, we
perceive no error in the conclusions reached by Judge Edelstein. Having
carefully studied the record and the authorities cited to us, we are satisfied
that the Plaintiff-Appellee is entitled to her judgment on the basis outlined
and, in accordance with precedent, that Larsen was not entitled to indemnity
from Ford.
The Defendant-Appellant also claims that the damages [**8] awarded were excessive. That an award may be
reviewed is beyond peradventure. Dagnello v. Long Island Rail Road Co., 289
F.2d 797 (2 Cir. 1961); Wicks v. Henken, 378 F.2d 395 (2 Cir. 1967); Caldecott,
Admx. v. Long Island Lighting Co., 417 F.2d 994 (2 Cir. 1969) and Bazydlo v.
Placid Marcy Co., Inc., 422 F.2d 842 (2 Cir. 1970). Larsen has advanced its
contention earnestly, and we may observe that at first blush, the award seems
excessive.
However, taking account of Grunenthal v. Long Island R.R., 393 U.S.
156, 159, 89 S. Ct. 331, 21 L. Ed. 2d 309 (1968) we have ourselves examined the
record evidence involved in the findings of the trial judge who had carefully
detailed the respective elements on which he based the award. Judge Edelstein
approached the problem in respects not greatly different from those considered
in United States v. Furumizo, 381 F.2d 965 (9 Cir. 1967), where the judge,
sitting without a jury, spelled out the factors upon which he predicated his
computation and the ultimate award. See also United States v. Sommers, 351 F.2d
354, 359-360 (10 Cir. 1965); O'Connor v. United States, 269 F.2d 578 (2 Cir.
1959). [**9] After a fair appraisal of
the claims advanced by Larsen measured against the findings, not without
support in the record, we are satisfied the award should be permitted to stand.
Affirmed.