Widera v. Ettco Wire & Cable Corp.

204 A.D.2d 306, 611 N.Y.S.2d 569, 1994 N.Y. App. Div. LEXIS 4595

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 1994
• Status: Published

Opinions

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Di Tucci, J.), dated March 10, 1992, as, upon granting the defendant’s motion for partial summary judgment, searched the record, and dismissed so much of the first cause of action in the complaint as sounded in common-law negligence.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs allege that the infant plaintiff Catherine Widera was exposed to toxic chemicals while in útero and, as a result, suffers from various physical infirmities. As stated in the complaint and as amplified by the bill of particulars, the exposure took place when the infant plaintiff’s father brought his work clothes home to be washed by his then pregnant wife. During the time in question, he was employed by the defendant as either an "extruder helper” or a "blender operator” and, in the course of his employment, was exposed to various toxins.

In their complaint the plaintiffs alleged two causes of action. The first cause of action sought to recover damages for personal injuries to the infant plaintiff based on (1) common-law negligence and (2) violations of various provisions of the New York State Labor Law and the Federal Occupational Safety and Health Act (hereinafter OSHA). The second cause of action was a derivative claim on behalf of the infant’s father for loss of services. The defendant moved for partial summary judgment to dismiss so much of the first cause of action as alleged liability under the Labor Law and OSHA. The Supreme Court granted the motion, and, upon searching the record, dismissed the entire first cause of action holding that "no cause of action exists on behalf of the infant plaintiff pursuant to common law negligence, the Labor Law or OSHA”. On appeal the plaintiffs have abandoned any argument regarding that portion of their first cause of action which asserted a claim pursuant to the Labor Law or OSHA. Instead, the plaintiffs argue that the Supreme Court erred in dismissing so much of the first cause of action as sounded in common-law negligence.

Upon our review of the facts of this case as well as the applicable legal principles involved, we conclude that the Supreme Court properly dismissed the plaintiffs’ entire first cause of action, including any cause of action based upon common-law negligence. Under common law, an employer had the duty to provide employees with a safe workplace (see, Labor Law § 200; Russin v Picciano & Son, 54 NY2d 311, 316-317; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299; Maddox v City of New York, 108 AD2d 42, affd 66 NY2d 270). However, that duty has not been extended to encompass individuals, such as the infant plaintiff, who are neither "employees” nor "employed” at the worksite (see, Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577; Albala v City of New York, 54 NY2d 269; Tobin v Grossman, 24 NY2d 609, 615-616; cf., Woods v Lancet, 303 NY 349). Nor does our research reveal a reported case from any jurisdiction where an employer’s duty has been interpreted to extend to a person, such as the infant plaintiff, who is injured in the manner alleged herein. Since, in the absence of a duty there can be no liability, the Supreme Court properly dismissed that branch of the first cause of action sounding in common-law negligence (see, Johnson v Jamaica Hosp., 62 NY2d 523, 528; Pulka v Edelman, 40 NY2d 781, 785; Henry v Vann, 124 AD2d 783, 784, affd 71 NY2d 76).

In reaching this conclusion, we are not unaware that "[i]n fixing the bounds of * * * duty, not only logic and science, but policy play an important role” (DeAngelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055). However, it must also be recognized that there is a responsibility to consider the larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree (see, Eiseman v State of New York, 70 NY2d 175, 187; Waters v New York City Hous. Auth., 69 NY2d 225; Tobin v Grossman, supra). The recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs. Accordingly, we decline to promulgate a policy which would extend the common law so as to bring the infant plaintiff within a class of people whose interests are entitled to protection from the defendant’s conduct. Thompson, J. P., Santucci and Florio, JJ., concur.