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Appellate Practice - Medical Malpractice and Personal Injury - Recovery under Labor Law In Excess of Policy Limits

Federal District Court

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

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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.

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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.

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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."

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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.

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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.

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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.

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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."

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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]

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n5 17B McKinney's EPTL § 5-4.2.

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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.

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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.

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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

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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.)

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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.

Court of Appeals for the Second Circuit

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).

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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).

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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.

United States Supreme Court

400 U.S. 941; 91 S. Ct. 238;

27 L. Ed. 2d 245; 1970 U.S. LEXIS 258, *

No. 647. LARSEN FORD, INC. v. GASPERINO, ADMINISTRATRIX, ET AL.

SUPREME COURT OF THE UNITED STATES

400 U.S. 941; 91 S. Ct. 238; 27 L. Ed. 2d 245; 1970 U.S. LEXIS 258

Dec. 7, 1970.

PRIOR HISTORY: [*1]

C.A. 2d Cir. Reported below: 426 F. 2d 1151.

OPINION: Certiorari denied.