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Court Revives 'Second-Hand' Asbestos Case

Dec 3, 2004 | New York Law Journal

The Port Authority of New York and New Jersey may be liable for injuries resulting from "second-hand" exposure to asbestos at its work sites, the Appellate Division, First Department, ruled yesterday.

Reversing Justice Helen E. Freedman's grant of summary judgment in favor of the Port Authority, the appellate court concluded that the Manhattan Supreme Court "erred in holding that the Port Authority owed no duty to the wife as a matter of law on the ground that an employer's duty to provide employees with a safe workplace did not extend to non-employees exposed to asbestos off premises."

Elizabeth Holdampf, a 59-year-old housewife from Queens, initiated an action against the Port Authority and more than 20 other defendants after being diagnosed in 2001 with mesothelioma, a usually fatal form of cancer associated with exposure to asbestos dust. All of the defendants except for the Port Authority — mostly manufacturers of asbestos or products that require asbestos — have settled or been dismissed from the case.

Ms. Holdampf's husband, John, worked as a mechanic at the Port Authority from 1960 until 1996 and was exposed to asbestos at at least eight of its sites, including the World Trade Center, the Holland and Lincoln tunnels and all three major New York-area airports.

Mr. Holdampf, who does not have cancer, wore his work clothes home each evening, Mrs. Holdampf alleges, and her repeated exposure while laundering his contaminated clothing for 30 years caused her cancer.

Ms. Holdampf claimed that the Port Authority was negligent for "failing to warn its employees and 'other persons who were reasonably and foreseeably known to come into contact with the asbestos-containing products' against the dangers associated with exposure to asbestos," Justice Luis A. Gonzalez wrote in Holdampf v. A.C.S. Inc., 3478.

The decision will be published Thursday.

In its motion for summary judgment, the Port Authority contended that liability did not attach because Ms. Holdampf's exposure was not connected to her personally being employed at any Port Authority site. Neither common law nor statutory duty extends to non-employees, the defense argued, citing Widera v. Ettco Wire and Cable Corp., 204 AD 2d 306.

In a one-sentence short order form, the Supreme Court granted the Port Authority's motion, "based on [the] Widera case and absence of duty to plaintiffs."

In a 21-page ruling overturning that decision, the appeals panel relied on the principles of foreseeability that descend from the seminal case Palsgraf v. Long Island Rail Road Co., 248 NY 339.

In deciding on duty of care, Justice Gonzalez said, a court should look at such factors as the relationship of the parties, whether the accident was foreseeable and, citing Palsgraf, "whether the plaintiff was within the zone of foreseeable harm."

The Port Authority ignored this line of precedent, Justice Gonzalez wrote, and based its application for summary relief "almost exclusively on the Widera rationale that an employer owes no duty of care to non-employees outside the workplace."

That was misguided, the panel found, since Widera was distinguishable. That case, filed on behalf of an infant plaintiff who had been exposed to chemicals as a result of a pregnant mother's washing of work clothes, "involved the unique question of a tortfeasor's liability to an infant for injuries occurring while in utero."

The court also declined to "subscribe to such a narrow view of common-law negligence" as Widera's, one that precludes liability from extending "to any non-employees for injuries resulting from dangerous substances escaping from its premises."

Attorneys for the Port Authority could not be reached for comment.

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