N.Y.'s high court tosses asbestos suit

Jessica M. Karmasek Nov. 23, 2010, 10:51am


ALBANY, N.Y. (Legal Newsline) - The New York State Court of Appeals ruled on Thursday that vicarious liability under a section of the state's Labor Law may not be predicated solely on a violation of regulations contained in part of its Industrial Code.

The Court's decision stems from a case brought by a boilermaker who was diagnosed with mesothelioma as a result of possible asbestos exposure while on the job.

During the 1970s and 1980s, Donald Nostrom worked as a boilermaker for subcontractors on construction projects at various energy facilities, including those owned by defendants Orange & Rockland Utilities, Inc., or O&R, and Central Hudson Gas & Electric Corp.

Nostrom said defendant Sequoia Ventures, Inc., f/k/a Bechtel Corporation, served as the general contractor for two of the projects.

While working at these power plants, Nostrom was allegedly exposed to asbestos through airborne dust and contact with asbestos-containing materials. He subsequently contracted mesothelioma.

Nostrom and his wife sued more than 60 defendants, including O&R, Central Hudson and Sequoia.

Nostrom asserted a Labor Law Section 200 claim against Central Hudson and a violation of Labor Law Section 241 against each of the three defendants involved in the appeal.

After discovery, the defendants separately moved for summary judgment dismissing the complaint.

A lower court granted the motions and dismissed the complaint insofar as asserted against the defendants. Nostrom appealed the dismissal.

During the course of the litigation, Nostrom died. His wife, Judith Nostrom, pursued the action as the personal representative of his estate.

Associate Judge Victoria A. Graffeo, who authored the opinion, wrote that at issue is whether the Section 241 claim in the case may be based on the violation of Industrial Code Part 12 regulations pertaining to the control of air contaminants in the workplace.

Judith Nostrom asserted that O&R and Central Hudson, as owners, and Sequoia, as a general contractor, may be held liable for the alleged failures of various subcontractors to comply with the Industrial Code.

The defendants, in their response, argued that the lower court "correctly held" that the relevant language and history underlying the regulations demonstrate that Part 12 cannot support vicarious liability "except to the extent that Part 12 regulations are specifically incorporated into Part 23."

Part 23 of the Industrial Code governs the protection of workers in construction, demolition and excavation operations.

Its application provision expressly states that the rules in Part 23 apply to "owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work."

Hence, the Court wrote, "it is clear" that Part 23 was promulgated pursuant to the authority granted by Labor Law Section 241 and that owners and contractors may be vicariously liable based on violations of Part 23 regulations.

However, the Court said the application section of Part 12 does not specify that its rules apply to owners, contractors and their agents.

"The absence of such wording suggests that Part 12 was not created to give effect to the provisions of Section 241 and indicates an intent not to impose vicarious liability in connection with Part 12 regulations," Graffeo wrote for the Court.

Graffeo also wrote that the Court's conclusion that Part 12 does not impose liability on owners and contractors Labor Law Section 241, except insofar as it is expressly incorporated into Part 23, "is consistent with the regulatory history underlying the two parts."

The lower court "correctly affirmed" the dismissal of Nostrom's Section 241 claim, the Court concluded.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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