Opinion
Index No. 814293/2016
03-15-2018
In Re EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION v. A. O. SMITH WATER PRODUCTS CO., et al., Defendants SUSAN CAVALIERI and ANTHONY CAVALIERI, Plaintiffs
Unpublished Opinion
PRESIDING: HON. DEBORAH A. CHIMES
DECISION AND ORDER
DEBORAH A. CHIMES, JUDGE
Defendant A.O. Smith Water Products Co, (A.O. Smith), a boiler manufacturer moves for summary judgment pursuant to CPLR §3212.
In support of its motion, A. 0. Smith submitted its Notice of Motion dated October 31, 2107, the Affirmation of Counsel in Support of Christopher B. Bladel, Esq., with attached exhibits, dated October 31, 2017.
In opposition to defendant A.O. Smith's motion, plaintiffs submitted the Affirmation in Opposition of Matthew Tarasoff, Esq., with attached exhibits, dated November 10, 2017.
Plaintiff Susan Cavalieri is 62 years old and suffers from mesothelioma, caused, plaintiffs claim, by exposure to asbestos brought into her home on her husband, Anthony Cavalieri's, person and clothing.
Plaintiffs allege that Anthony Cavalieri was exposed to asbestos when he worked as a plumber for Sal's Plumbing and Heating Service in Buffalo from 1982-1986.
Defendant contends that Anthony Cavalieri's deposition testimony shows that the only reason that he removed boiler covers (also called jackets) which resulted in his exposure to asbestos insulation, was so that metal from the boilers could be scrapped. Based on its view of the testimony, defendant moves for summary judgment, contending that Appellate Division, First Department decision, Hockler v The William Powell Co., 129 A.D.3d 463 (2015) relieves it of liability and mandates dismissal of this action against it.
In Hockler, plaintiff alleged that he was injured when exposed to asbestos-containing valves manufactured by defendant The William Powell Company (Powell) (id., at 464). Plaintiff was working in vacant buildings, dismantling and salvaging metal from steam systems, at the time of his exposure.
Hockler reversed the trial court's denial of summary judgment to Powell. It based its decision on §402 A of the Restatement (Second) of Torts, and three out- of- state cases: Wingett v Teledyne Indus., Inc., (479 N.E.2d 51 [Ind 1985], overruled on other grounds Douglass v Irvin, 549 N.E.2d 368 [Ind 1990]); High v Westinghouse Elec. Corp. (610 So.2d 1259 [Fla 1992] ;and Kalik v. Allis- Chalmers Corp., (658 F.Supp. 631 [WD Pa 1987]).
The court explained its reliance upon 402A of the Restatement (Second) of Torts, although it has been superseded by the Restatement (Third) of Products Liability:" ... because it had been cited by other courts in determining whether salvaging and demolishing constitute foreseeable uses of a product" (Hockler at 464.) The court also noted that Restatement (Second) of Torts § 402A had been cited by the Court of Appeals in Sprung v MTR Ravensburg (99 N.Y.2d 468, 473 [2003]) after it had been superseded.
Hockler' s analysis began with the proposition that" 'A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose', Lugo v UN Toys, 75 N.Y.2d 850, 852 (1990)" (id. at 464) However, the court found that plaintiff's salvage work was not a "reasonably foreseeable use" of Powell's valves, adopting the holding in Wingett (id. at 464-465,). Next, following High, the court found that "dismantling is not an intended use of a product" and that "dismantling and processing ... was not a reasonably foreseeable use" of the manufacturers' products, adopting Kalik. The court concluded that the complaint, sounding in strict liability and negligence, should have been dismissed, because plaintiff did not use the valves "..in a reasonably foreseeable manner and his salvage work was not an intended use of the product..." (id. at 465).
Plaintiffs assert that this case is totally distinguishable from Hockler, In addition, plaintiffs contend that Hockler should be restricted to its peculiar facts. Finally, they assert that in accordance with established precedent, disassembly and removal of boilers and other asbestos-containing products as performed by plaintiff husband constitutes a foreseeable and intended use.
This court agrees that Hockler is inapplicable here.
In Smith v A.O. Smith Water Products Co. 2015 WL 5703100 (Sup Ct, NY County, September 25, 2015), plaintiff alleged injury from exposure to asbestos from boilers. Defendant boiler maker, Cleaver-Brooks, Inc. sought summary judgment in light of Hockler Judge Heitler, who had decided the motion later reversed in Hockler, wrote:
"I agree that by its very language Hockler is framed narrowly to shield product manufacturers from product liability claims brought by salvage workers whose interactions with their products are entirely unrelated to their intended use and functionality. While the First Department may have framed the issue broadly, i.e., 'whether dismantling constitutes a reasonably foreseeable use of a product,' its definitive holding was unmistakably limited, that "plaintiffs salvage work was not a reasonably foreseeable use of the valves manufactured by Powell'. Hockler, 129 A.D.3d at 464-65 (emphasis added). At no point did the appellate court pronounce that plaintiffs who disassemble products during routine maintenance or in connection with renovations cannot recover from product manufacturers in strict liability".The court observed that plaintiff, a plumber, disassembled and removed boilers in order to replace them and restore heating systems' function. In contrast to the plaintiff in Hockler, Smith was a skilled worker, not a salvager, carefully using plumber's tools with the boilers, rather than "ripping, cutting, breaking and smashing" the product as did the plaintiff in Hockler. The Judge wrote "I believe that the First Department intended for Hockler to affect the claims of salvage workers only". The court held that whether plaintiff's exposure to asbestos from defendant's boilers was foreseeable presented a triable issue of fact and denied the motion.
Citing testimony from defendant's corporate representatives, the court also found that defendant knew that its boilers had limited lifespans, and would be removed and replaced, that asbestos "would likely be disturbed" if the boilers were removed in more than one piece.
In Harrison v A.O. Smith Corp., 2016 WL 540701 (Sup Ct, NY County, February 11, 2016), the court, like the court in Smith, read Hockler narrowly. Plaintiff was a day laborer engaged in commercial and residential construction and demolition. He alleged injury from exposure to asbestos from valves "ripped out" during demolition. In denying summary judgment to defendant valve manufacturer, the court held that Hockler did not stand for the proposition that all demolition activities were unforeseeable, its holding should be limited to use of valves by a salvager who demolished them. The court noted that High and Kalik, relied on in Hockler, both involved salvage work.
Defendant fails to consider the entirety of Anthony Cavalieri's testimony. A review of the testimony shows there is no distinction between plaintiff husband's work and that of the plaintiff-plumber in Smith. Further, his work was unlike that of the plaintiff in Hockler. Plaintiff husband worked for Sal's Plumbing and heating which was in the business that its name indicatedftr at 67 ). Part of his work, in furtherance of that business, was to replace existing boilers with new ones, (tr at 153, 178-179, 278) . He stated that he tore down existing boilers "to get them out of the room." (tr at 78). It was in connection to that work at both commercial and residential properties that plaintiff husband alleged exposure to asbestos from the disassembly of boilers, including A.O. Smith boilers, (tr at 80-81; 161-164; 166; 169-170; 178-179; 190-201.) In addition, plaintiff testified that he used hand tools, including wrenches in disassembly of the boilers, (tr at 165).
References are to the deposition transcript of Anthony Cavalieri, taken June 6 and 7, 2017, Ex. D to the Affirmation of Christopher B, Bladel, Esq.
Hockler does not bar the relief sought herein. The facts here "do not fit within the narrow framework articulated by the First Department in Hockler" (Harrison). Anthony Cavalieri was in no sense a salvager. The motion is denied.
SO ORDERED.