Billsborrow v. Dow Chemical, U.S.A.

177 A.D.2d 7, 579 N.Y.S.2d 728, 1992 N.Y. App. Div. LEXIS 2590
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 18, 1992
StatusPublished
Cited by30 cases

This text of 177 A.D.2d 7 (Billsborrow v. Dow Chemical, U.S.A.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billsborrow v. Dow Chemical, U.S.A., 177 A.D.2d 7, 579 N.Y.S.2d 728, 1992 N.Y. App. Div. LEXIS 2590 (N.Y. Ct. App. 1992).

Opinion

OPINION OF THE COURT

Thompson, J.

On August 12, 1978, the plaintiff’s 22-year-old decedent, Christopher Billsborrow, died from cardiac arrest caused by the inhalation of highly toxic vapors from a chlorinated solvent known as trichloroethylene. At the time of his death, Billsborrow, an employee of Welmetco, Ltd. (hereinafter Welmetco), was engaged in cleaning a vapor-degreasing machine owned by Eastern-Salkover Metal Processing Corp. (hereinafter Eastern). Welmetco was a sheet metal manufacturer in Melville, New York. Eastern, an affiliated corporation, processed metal parts and was located at the same Melville premises as Welmetco. Dow Chemical, U.S.A. (hereinafter Dow), manufactured and sold trichloroethylene under the brand name Neu-Tri. The chemical solvent which produced Billsborrow’s fatal injuries was alleged to have been Neu-Tri which Dow sold in bulk to Pride Solvent & Chemical Company, Inc. (hereinafter Pride). Pride distributed Neu-Tri to Welmetco and Eastern.

This action was commenced by the decedent’s wife Nancy Ann Billsborrow, individually and as administratrix of his estate, against Dow and Pride, alleging negligence and strict liability upon the theory that they had failed to warn of the dangers involved in the use of Neu-Tri, and against Eastern upon the theory that it failed to provide the plaintiff’s decedent with a safe place to work and failed to warn the decedent of Neu-Tri’s dangerous propensities or to provide adequate instructions on its use. Dow and Pride impleaded Welmetco, alleging that it failed to provide the decedent with a safe work place because it failed to provide proper safety equipment or to provide proper training or supervision of the decedent in the cleaning of the degreasing machine.

Following a jury trial, a verdict was returned in favor of the plaintiff. The principal issues on the appeals of Dow and Pride are whether the trial court committed reversible error in refusing to charge the jury that if Welmetco actually had knowledge of the hazards posed to employees using trichloroethylene, its negligence in failing to warn the decedent of such [10]*10dangers or to provide him with a proper breathing apparatus to filter out the noxious vapors constituted a superseding or intervening cause which, as a matter of law, relieved Dow and Pride of liability for the plaintiff’s decedent’s injuries. Although we find no basis on this record for concluding, as a matter of law, that Welmetco’s negligence, if any, was a superseding cause, the question of superseding or intervening cause should have been submitted to the jury as a question of fact for its determination. The jury could have found Welmetco’s negligence so extraordinary under the circumstances that the death of the plaintiff’s decedent was not a foreseeable consequence of any negligence on the part of Dow or Pride in failing to provide adequate warnings. We therefore reverse the judgment insofar as appealed from and grant a new trial to the appellants.

I

The evidence at the trial indicated that prior to his death, Christopher Billsborrow was employed since January 1978 as a shipping clerk and "general helper” at Welmetco. Welmetco and Eastern were affiliated corporations that occupied adjoining portions of premises at 70 Marcus Drive, Melville, New York. Henry Medina was the president of Welmetco and Eastern and his brother George Medina was the vice-president and manager of Welmetco. On August 11, 1978 George Medina took Billsborrow to the Eastern side of the premises for the stated purpose of having Pat Haggarty of Eastern train him to clean a vapor-degreasing machine, used to clean soiled metal parts. The degreasing machine which was owned by Eastern was five feet wide by five feet long and five feet deep and was situated in a seven-foot-deep concrete pit. In order to remove grease and wax from metal parts, trichloroethylene was poured into the degreaser and heated to create a vapor. Periodically, the trichloroethylene had to be removed from the degreaser as it became dirty, and the accumulated sludge and residue scraped out of the tank. Although the pit itself had no exhaust flue to evacuate accumulated vapors or fans to circulate air in the pit, the degreasing tank had a blower.

The next day, August 12, 1978, Billsborrow worked overtime and was assigned the task of cleaning Eastern’s degreasing machine. Billsborrow had engaged in this task only once, several months previously. The process involved draining the trichloroethylene through a valve located in the center of the [11]*11tank floor and then, using a scooper mounted on the end of a long pole, scraping the residue of grease and trichloroethylene off the inside walls of the degreaser and depositing it in a disposal barrel. George Medina testified that employees were instructed in safety procedures to follow when using trichloroethylene to clean the degreaser. They were instructed by the supervisor not to enter the tank, to wear rubber gloves and protective glasses, not to splash any of the degreasing solution, to ensure that the area was adequately ventilated by opening windows and doors and turning on blowers and fans, and to work with an assistant.

When George Medina arrived at the plant on the morning of August 12 he saw Billsborrow near the degreaser. Billsborrow advised George how he had already emptied the degreaser tank using a sump system he had created. When George Medina remarked that the mask Billsborrow was carrying in his hand was not customarily used in cleaning the tank, Billsborrow responded that he was using one like it while cleaning the tank. Testimony revealed that the mask Billsborrow was using was of a type designed to filter out only ammonia fumes and dust, and could not protect a wearer against trichloroethylene fumes. Apparently, Welmetco’s policy was not to require the use of respirators on the theory that if an employee were permitted to smell the fumes he would be repelled by the odors from areas in which there was an unhealthy concentration of chemical vapors. George Medina expressed ignorance of the fact that the longer one was exposed to trichloroethylene the less one could smell it.

Although the doors of the loading area were open on the date of the accident, Billsborrow did not have the blower on the degreasing machine turned on nor did George Medina recall instructing him to activate it. George Medina also did not recall observing any fans in use or exhaust system operating to ensure proper ventilation around the degreasing pit. After learning that Billsborrow was undertaking the cleaning of the degreasing machine alone, George Medina assigned another employee, Hermino Ramos, to assist him. Ramos had never cleaned a degreasing machine before and no one had warned him of the dangers of using trichloroethylene or trained him with regard to safety procedures. Ramos confirmed that no fans were activated during the process nor were any danger signs posted. The main cleaning task was performed by Billsborrow, who climbed into the degreasing tank and shoveled sludge into a bucket which he then handed [12]*12to Ramos who remained outside the tank at the rim of the rectangular pit. Billsborrow then flushed the walls of the tank with several buckets of trichloroethylene. On his last trip into the tank to open the drainage valve, Billsborrow was overcome by the noxious vapors. As he struggled to climb out of the pit, Billsborrow suddenly clutched at his mask and collapsed. Attempts to resuscitate Billsborrow were unsuccessful. His death was caused by cardiac arrest brought on by exposure to high concentrations of trichloroethylene vapors.

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Bluebook (online)
177 A.D.2d 7, 579 N.Y.S.2d 728, 1992 N.Y. App. Div. LEXIS 2590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billsborrow-v-dow-chemical-usa-nyappdiv-1992.