Opinion
110733/10.
Decided April 5, 2011.
Locks Law Firm, PLLC, New York, New York, for Plaintiffs.
McMahon, Martine Gallagher, LLP, Brooklyn, New York, for Defendant Island Transportation Corp.
Lewis Brisbois Bisgard Smith, LLP, New York, New York, for Defendants Safety-Kleen.
Jones Carr McGoldrick, Dallas, Texas.
McGivney Kluger, P.C., New York, New York, for Defendant United States Steel Corp.
Shoeman, Updike Kaufman, LLP, New York, New York, for Defendants Shell Oil and Penzoil-Quaker State.
Malaby Bradley, LLC, New York, New York, for Defendant Radiator Specialty Corp.
McCarter English, LLP, New York, New York, for Defendant Sunoco, Inc.
Lynch Brown LLP, New York, New York, for Defendant Sears Holding Corp.
Mcmahon DeGulis, LLP, Cleveland, Ohio.
Defendant Island Transportation Corporation (Island) moves, pursuant to CPLR 3212, for summary judgment dismissing the first amended verified complaint asserted against it.
The complaint was initially dismissed on default against Island, based on an apparent improper attempt at service. Plaintiffs filed a motion to vacate the default, which was not opposed by Island. According to the first amended verified complaint, plaintiff John J. McCormack (plaintiff) worked as a splicer helper and mechanic, for New York Telephone from approximately 1971 to 1983, at various locations in New York County. Allegedly, during the course of his employment, plaintiff worked with and around, and was exposed to, products containing benzene, resulting in personal injuries. Plaintiff states that the benzene-containing products to which he was exposed include, but are not limited to, Safety-Kleen 105 solvent, Gumout brake cleaner and carburetor cleaner, liquid wrench, gasoline, Sears penetrating oil and Sears paints. First Amended Verified Complaint, ¶ 16. Plaintiff asserts that defendants "manufactured, marketed, sold, distributed, relabeled and commingled those benzene-containing products," and that defendants, working in concert, failed to warn him, and those similarly situated, of the known dangers associated with exposure to benzene-containing products. Id., ¶¶ 18, 19. Plaintiff further states that defendants "comprised virtually the entire benzene-containing product manufacturing industry. Id., ¶ 20.
The first amended verified complaint asserts five causes of action: (1) negligence in failing to warn of the dangers of benzene-related products; (2) strict liability; (3) intentional tort; (4) fraudulent misrepresentation; and (5) a derivative action by plaintiff's wife, Phyllis McCormack.
According to the affidavit of Peter Fioretti, Jr. (Fioretti), the president and sole shareholder of Island, Island used products manufactured by Safety-Kleen Systems, Inc. and Safety-Kleen Corporation, but never transported any of those products. Further, Fioretti attested that he has never heard of the defendant Radiator Specialty Company, and that Island has transported gasoline for Shell Oil Products, LLC and Shell Oil Company (together, Shell Oil) pursuant to a Transportation Agreement/Contract.
Fioretti also states that Island never transported Safety-Kleen 105 solvent, Gum Out, Brake Cleaner and Carburetor Cleaner, Liquid Wrench, Sears Penetrating Oil and/or Sears Paints. In addition, according to Fioretti, Island did not manufacture, design, market, sell or distribute benzene-containing solvents, degreasers, gasoline or fuels.
Island maintains that it does not fall into any of the categories relied upon by plaintiff for his claims against it.
Island asserts that it is merely a transportation company and, as such, it never engaged in any activity that would subject it to a products liability claim. Moreover, according to Island, it is a small transportation company located on Long Island, New York, and it is absurd to believe that it acted in concert with major multinational companies in a conspiracy to foist benzene-containing products on an unsuspecting public. Island contends that all it ever did was pick up gasoline at its customer Gulf Oil's facility and deliver it to Gulf Oil's customers, which included plaintiff's former employer, without designing, manufacturing, buying, owning or selling the gasoline that it transported.
Specifically, with respect to each cause of action alleged by plaintiffs, Island avers: (1) it never had any notice or information that the gasoline it transported to New York Telephone contained benzene or was a dangerous or toxic product, and that, because it only had a contractual relationship with Gulf Oil to transport Gulf Oil products, it owed no duty towards plaintiff; (2) as a mere transportation service provider, Island is not a party that can be held liable for a products liability cause of action based on a failure to warn; (3) Island never manufactured, designed, marketed, sold, distributed, labeled, commingled or leased any benzene-containing product, and never engaged in any advertising with respect to such products; (4) Island was never involved in any conspiracy with the other defendants to defraud plaintiff; and (5) the loss of consortium claim has no basis since the principle claims cannot be maintained against Island. For the foregoing reasons, Island asserts that the complaint should be dismissed as against it.
In opposition to the instant motion, plaintiff argues that, by transporting the benzene-containing products, which Island admits that it did, it is a distributor of such products and may be held strictly liable for plaintiff's injuries resulting from his exposure to those products. Plaintiff bases his assertion that Island is a distributor as that term is used in 29 CFR § 1910.1200 (b) (1), which requires:
"[c]hemical manufacturers or importers to assess the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed,
by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers. . . ."
Further, plaintiff asserts that Island profits from the sale of gasoline, that it maintains liability insurance to insure it against injuries caused by exposure to gasoline, and that it was aware that its customers were exposed to gasoline vapors in the course of their work. Plaintiff bases these assertions on the examination before trial (EBT) of Fioretti in a New Jersey action entitled John J. Mull et al. v Texaco, Inc., et al., Docket No. CAM-L-884-07, in which Island is also a named defendant, a similar action to the case at bar. Opp., Ex. B. The court notes that, in that EBT, Fioretti testifies that Island is a member of the National Tank Truck Association.
Plaintiff has also provided excerpts from the EBT of John Furey (Furey), the current director of operations at Island who was first employed by Island in 1988, several years after plaintiff's alleged exposure. Opp., Ex. E. This EBT was also part of the discovery in the New Jersey litigation. Furey stated that Island received Material Safety Data Sheets (MSDS) and safety training from oil companies. Opp. Ex. E.
Plaintiff avers that Island is required to have warning placards on its trucks, which it does, alerting the public to the dangers of its transporting hazardous materials. Further, Island has a vapor recovery system installed in its trucks to avoid injuries caused by inhalation of gasoline vapors, which, according to plaintiff, indicates that it was on notice of the hazardous effects of breathing in gasoline.
Lastly, plaintiff opposes the instant motion as being premature, because discovery has yet to take place.
In reply, Fioretti has submitted a further affidavit, in which he attests that the warning placards that appear on Island's trucks concern flammability, and that the Department of Transportation does not require it to place warning placards dealing with toxic materials on its trucks because the transportation of gasoline is not considered by the government to be an inhalation hazard. Fioretti Aff. in Opp., Exs. B and C.
Island argues that the MSDS that plaintiff attached to his opposition is that of Chevron and Gulf Oil, not Island, and that it is dated January 7, 1987, four years after the exposure alleged by plaintiff. Island also contends that its customer was Gulf Oil, not plaintiff's employer, and that its vapor recovery system was installed pursuant to law, but that no gasoline vapors emanate from the unloading of the gasoline to users because of the fitting hoses that are used.
Island states that the insurance policies that it carries are irrelevant to the case at hand because, as a prudent company, it insures itself against commercial risks of operation regardless of a finding of ultimate liability.
Lastly, Island avers that plaintiff's argument that the motion is premature due to the lack of discovery is without merit, because the attorney representing plaintiff represented the plaintiff in the above-referenced New Jersey action, during which time he deposed the parties he alleges that he needs to depose in the current New York action. Since, in support of his opposition, plaintiff has attached portions of those persons' depositions from the New Jersey action, Island asserts that it indicates that plaintiff already believes that he has sufficient evidence from those persons so as to negate his argument for needing more discovery.
In the New Jersey action, plaintiff states that Island's summary judgment motion, based on the same arguments as proffered here, was denied; however, the New Jersey court simply denied the motion and failed to articulate any reason for its decision.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein , 35 AD3d 184 , 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art , 27 AD3d 227 , 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).The thrust of plaintiff's argument is that a distributor may be held liable for injuries to third persons pursuant to the products liability law, a legal argument with which the court concurs. In contrast, Island maintains that a transporter of goods that is not a distributor is not so liable. The court agrees with this proposition as well.
"The doctrine of strict products liability grew out of a public policy judgment that, with increasingly sophisticated, mass-marketed technologies, consumers hurt by defective products needed greater protection than that afforded by the law of warranty."
Bellevue South Associates v HRH Construction Corp., 78 NY2d 282, 290 (1991).
Distributors of defective products, as well as retailers and manufacturers of such products, may all be subject to strict products liability. However, "liability may not be imposed for strict products liability upon a party that is outside the manufacturing, selling or distribution chain.'" Spallholtz v Hampton C.F. Corp., 294 AD2d 424 (2d Dept 2002) quoting Joseph v Yenkin Majestic Paint Corp., 261 AD2d 512 (2d Dept 1999).
At the outset, it is important to note that plaintiff has not alleged, nor argued that Island altered or changed the nature of the benzene-containing products while they were in Island's custody and control, nor that such an alteration or change was the precipitating factor that caused plaintiff's injuries. Plaintiff's action is based on the allegation that the products themselves are inherently hazardous, and that Island should be held liable for its part in transporting the product to plaintiff's former employer. Hence, Island's alleged liability is predicated on the proposition that it distributed the hazardous product to the public.
In his opposition to the instant motion, plaintiff does not dispute that Island did not manufacture, design, market, relabel or commingle the benzene-containing products. Plaintiff contends that Island distributed and sold the hazardous product.
Plaintiff bases his primary contention on obligations imposed upon distributors by 29 CFR § 1910.1200, quoted above, and it is noted that the regulation defines "distributor" as "a business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to employers." 29 CFR § 1910.1200 (c). However, the regulation does not specifically define the term "supplies."
Neither of the parties has provided the court with a New York definition of "distributor" as it applies to strict products liability, and the court could not find a statute or case on point. Consequently, this motion presents a case of first impression.
In Brumbaugh v CEJJ, Inc. ( 152 AD2d 69, 71 [3d Dept 1989]), the court said:
"Liability is not to be imposed, however, upon a party whose role in placing the defective product in the stream of commerce is so peripheral to the manufacture and marketing of the product that is would not further these policy considerations [concerning the policy behind products liability law]. For example, no liability attaches where one performs a service rather than makes or sells a product. Thus, repairmen are not to be held accountable in strict products liability when they repair an already marketed product . . . [internal citations omitted]."
Therefore, the question is raised as to whether an entity that transports benzene-containing products is an integral part of placing the product in the stream of commerce, or is merely providing a peripheral transportation service for the seller. Plaintiff argues that, because Island made a substantial portion of its income from such activities, it is a distributor, whereas Island asserts that it simply provided a tangential service for remuneration.
In support of its position, Island cites to Lundy v Cliburn Truck Lines, Inc. ( 397 F Supp 2d 823 [SD Miss 2005]), wherein the defendant truck line was hired to pick up and deliver gasoline to certain stores that were customers of the oil company that retained its services. The trucking company did not buy, sell, wholesale, retail or manufacture gasoline products, nor did it design, test, package, label, market or otherwise advertise the gasoline. In dismissing the case as against the trucking company, the Court said:
"Cliburn Tank Lines was merely a deliverer of gasoline from the seller to the buyer. Cliburn Tank Lines had nothing to do with the design, manufacture or sale of the gasoline, and it had no reasonable knowledge of the alleged dangerous nature of benzene as an additive to gasoline. Under these facts, Cliburn Tank Lines must be dismissed from this case." Id. at 829.
Plaintiff correctly points out that the main issues decided in the Cliburn Tank Lines case dealt with questions of federal diversity; however, the federal court articulated the foregoing in its decision not to remand the matter because that plaintiff failed to state cause of action against the trucking line. This court agrees with the rationale of the federal court.
In all instances that the court could find, whenever the term "distributor" was used, or a distribution contract was discussed, the terms were used in the context of an entity selling the product in question, the product having been purchased by the distributor either from the manufacturer or a distributor higher in the selling chain between the manufacturer and the ultimate consumer. Such examples include: North Shore Bottling Co., Inc. v C. Schmidt and Sons, Inc. ( 22 NY2d 171) (a beer distribution contract concerned the sale of the defendant's beer by the plaintiff distributor); Matter of Twentieth Century-Fox Film Corp. v Gerosa ( 9 NY2d 750) (a film distribution contract concerned the distributor marketing films for a percentage of each film sold); Godoy v Abamaster of Miami, Inc. ( 302 AD2d 57 [2d Dept 2003]) (strict products liability attaches to a distributer acting as a conduit in the sale of the product); Keis Distributors, Inc. v Northern Distributing Company, Inc. ( 226 AD2d 967 [3d Dept 1996]) (the court discussed a distribution contract for the sale of brands of beer, in which the distributor was contracted to sell those brands to the public); ICD Group, Inc. v Proaroma Industriay Comercio, Ltda. ( 188 AD2d 357 [1st Dept 1992]) (the distribution agreement between the parties called for the distributor to purchase fumaric acid from the importer of the acid for resale to one of the importer's customers); Raygo, Inc. v Credle Equipment, Inc. ( 40 AD2d 207 [4th Dept 1972]) (a contract for the distribution of equipment required the distributor to sell the equipment, by which means the distributor earned a profit); Matter of NTA, Inc. (Tableau Television, Ltd.) ( 11 Misc 2d 333 [Sup Ct, NY County, 1957], affd 8 AD2d 799 [1st Dept 1959]) (the distributor of television films sold the films for the producer); Matter of Central Greyhound Lines, Inc. of New York v Graves ( 274 App Div 679 [3d Dept 1949]) (a New York State tax was imposed on distributors of motor fuel when they sold the fuel within the state).
Moreover, in Matter of New York State Department of Taxation and Finance v Bramhall ( 235 AD2d 75 [4th Dept 1997]), in analyzing the tax regulations regarding the sale of motor fuel on reservations, it is noted that the regulations indicated a list of entities that would be subject to the tax, specifying, among others, both distributers and transporters, implying that there is a distinction between distributing and transporting motor fuel.
As the Court of Appeals recently stated:
"Strict products liability . . . appropriately applies to sellers who engage in product sales in the ordinary course of their business because such sellers may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods [internal quotation marks and citation omitted]."
Sprung v MTR Ravensburg, Inc., 99 NY2d 468, 473 (2003).
Further, in Spallholtz v Hampton C.F. Corp. ( 294 AD2d at 424, a situation in which the defendant in a strict products liability action did not manufacture or sell the subject product, the Court held that:
"its isolated act of arranging for a temporary exchange between two companies of the subject machine for another machine and for the shipment of the machine does not make it a distributor or seller for the purposes of imposing liability under theories of strict products liability. . . ."
Based upon the foregoing, it appears that, in order to be found liable under a theory of strict products liability with respect to a toxic substance, the entity must have been engaged in actively and regularly selling the substance, not simply transporting it for other sellers. Sukljian v Charles Ross Son Company, Inc., 69 NY2d 89 (1986). This conclusion is limited to situations in which the product in question is inherently dangerous and there is no allegation that the transporter, in any way, contributed to the dangerous nature of the product itself.
"The policy considerations that have been advanced to justify the imposition of strict liability on manufacturers and sellers in the normal course of business obviously lack applicability in the case of a party who is not engaged in the sale of the product in issue as a regular part of its business [internal quotation marks and citation omitted]."
Jaramillo v Weyerhaeuser Company , 12 NY3d 181 , 189 (2009).
Entities that merely transport products, rather than sell them, are more appropriately classified as common carriers instead of distributors.
"[A] common carrier [is] one who, by virtue of his business or calling undertakes for compensation to transport from one place to another either by land or water and deliver the same for all such as may choose to employ him; and every one who undertakes to carry and deliver for compensation the goods of all persons indifferently, is, as to liability, a common carrier' [internal citation omitted]."
Matter of Motor Haulage Company, Inc. v Maltbie, 293 NY 338, 351 (1944).
Therefore, in order to find Island liable, or potentially liable, for plaintiff's injuries, it must be conclusively established that it was a distributer, i.e., seller, of benzene-containing products during the period of plaintiff's alleged exposure.
In the case a bar, the only evidence presented on the issue of Island's role with respect to placing the benzene-containing products in the stream of commerce is its owner's affidavit indicating that Island merely transported such products pursuant to transportation agreements with the specified oil companies. However, Island has not produced a copy of those alleged contracts, which would provide the best evidence of the arrangement that it had with the oil companies, nor has Island provided affidavits from individuals from the oil companies with personal knowledge of the facts of the agreements. No one has been deposed in this matter, nor has there yet to be an exchange of documents as part of normal discovery procedures. This shortcoming is underscored by the fact that the depositions and documents presented, on both sides, emanated from a separate action in a different jurisdiction.
"In determining a motion for summary judgment, the court's role is issue identification, not issue resolution' [internal citation omitted]." Saunders v Farm Fans, division of ffi Corp. , 24 AD3d 1173 , 1176 (4th Dept 2005) (grant of summary judgment reversed in a strict liability action because questions of fact existed); First Transcable Corp. v Avalon Pictures, Inc., 184 AD2d 254 (1st Dept 1992). Where material questions of fact exist, it would be error to grant summary judgment. This is especially true in circumstances where the plaintiff has not had the opportunity to take any depositions or engage in any other form of discovery. McGlynn v Palace Company, 262 AD2d 116 (1st Dept 1999).
In the case at bar, at this stage of the litigation questions exist as to Island's relationship with Gulf, the regular source of its revenue, and the information available and known to it regarding the toxic nature of benzene-containing products at the time of plaintiff's alleged exposure. Consequently, and the reasons set forth, Island's motion for summary judgment is denied as premature.
CONCLUSION
Accordingly, it is hereby
ORDERED that Island Transportation Corporation's motion for summary judgment is denied.