Opinion
# 2018-053-003 Claim No. 126414
03-13-2018
ARON WEINBERG v. CITY UNIVERSITY OF NEW YORK
LAW OFFICES OF PAUL M. SOD BY: Paul M. Sod, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Suzette Corinne Merritt Assistant Attorney General
Synopsis
Following a bifurcated trial on the issue of liability, the Court finds that CUNY was liable to claimant for chemical burns sustained by him during the course of an assigned experiment in an organic chemistry lab. The Court finds that the proof at trial established that CUNY owed claimant a duty, that CUNY violated that duty by failing to provide reasonable precautions for the safety of students, and that this breach was the proximate cause of claimant's injuries. The Court also finds pursuant to CPLR 1411 that claimant is, in part, responsible for his injuries and apportions 50% against CUNY and 50% against claimant for his culpable conduct.
Case information
| UID: | 2018-053-003 |
| Claimant(s): | ARON WEINBERG |
| Claimant short name: | WEINBERG |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126414 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LAW OFFICES OF PAUL M. SOD BY: Paul M. Sod, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Suzette Corinne Merritt Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 13, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On April 30, 2015, claimant Aron Weinberg sustained chemical burns on his hands and left arm during an organic chemistry lab at defendant Queens College of the City University of New York (CUNY). The claim was filed on July 9, 2015 and alleges that CUNY was negligent in failing to provide proper safety equipment, failing to require the use of safety equipment, and failing to direct claimant to utilize the appropriate safety equipment while performing an experiment in an organic chemistry lab class. The trial of this claim, which was held in New York City on November 13 and 14, 2017, was bifurcated and addressed the issue of liability only. The claimant's proof included testimony from claimant and Fraida Streiter, a student in the same lab class as claimant. In defense of the claim, CUNY offered the testimony of Machiej E. Domaradzki, who was the teaching assistant for the subject organic chemistry lab. Following the trial, the parties requested and were granted additional time to obtain and review the trial transcript and to submit post-trial memoranda. TESTIMONY OF ARON WEINBERG
Claimant Aron Weinberg is presently 29 years old and was enrolled as an undergraduate student at CUNY at the time of the April 30, 2015 incident working towards a degree in psychology and neuroscience. He enrolled in Organic Chemistry II in the spring of 2015, which was a lab class meeting once per week for three hours. The claimant testified that there were 16 students in the class and that it was taught by teaching assistant Maciej E. Domaradzki (hereafter, Domaradzki). CUNY supplied the students with safety equipment, which consisted of safety goggles and 13 inch rubber gloves (TT: 8-11, Exhibits D and D1). He stated that Domaradzki presented a 15 minute introduction on safety training at the beginning of the semester, which consisted of a demonstration on how to use the safety shower, general spill procedures and that they were to wear safety goggles at all times. As to the use of the rubber gloves, claimant testified that on four occasions at the beginning of class, Domaradzki explained that day's lab experiment and specified that they should wear the rubber gloves with a specific chemical that would be utilized as it was particularly hazardous. Claimant testified that although lab coats were issued by CUNY in the neuroscience research lab, they were not issued for the organic chemistry lab (TT: 14-15, 17). As to the class on April 30, 2015, the day of the incident, claimant did not recall whether Domaradzki instructed them to wear gloves (TT: 15). During the course of the entire semester, claimant recalled wearing the safety gloves ten times. Claimant's lab partner for the semester was Fraida Streiter, who he testified wore her gloves the same number of occasions (TT: 16-17).
References to trial transcript are indicated herein (TT:).
During the class on the day of the incident, claimant testified that this was the first time that he had ever utilized bromine water. He explained that he had never heard of bromine water before and had only seen bromine referenced in the textbook assignment for that day but associated with carbon tetrachloride. This he understood to mean that it consisted of bromine and a solvent (TT: 19). Claimant testified that the lab experiment for that day required that they try to determine what an unknown substance was that they were provided by Domaradzki. This required that they identify the chemical or substance from its physical characteristics. He stated that he wanted to use the bromine contained within carbon tetracholride but that this chemical was not available in the lab. Domaradzki instructed that he and his partner use bromine water, which Domaradzki indicated was located on the tray of chemicals under the fume hood (TT: 20-21). Claimant testified that Domaradzki did not provide him with any particular safety instructions when using bromine water nor did he tell him to wear gloves (TT: 21). In fact, claimant testified that when Domaradzki instructed them to use bromine water, he was not wearing his gloves (TT: 23).
The claimant testified that the lab classroom was approximately 20 feet by 40 feet with a row of three tables and fume hoods located along the sides of the room. The fume hoods contain trays of chemicals for use in their lab assignments. He explained that the lab work performed was split between the student tables and the fume hoods (TT: 22). The fume hood was described by claimant as a large box about 5 feet wide and 3 feet deep and above it was a ventilating hood with an exhaust system to remove the chemical fumes from the classroom. It also had a sliding glass barrier on the front of it to contain the fumes. Claimant testified that the tray of chemicals in the fume hood he used that day was overcrowded, leaving insufficient room to use the beakers inside to pour in the required chemicals (TT: 26-27). After being instructed to use bromine water, claimant testified that he went to retrieve a beaker to place the sample of bromine water in and walked over to the fume hood. As he did, he believed that Domaradzki was then assisting other students (TT: 24).
Claimant testified that he located the bottle of bromine water in the back left side of the fume hood. He described it as an amber colored bottle with a cork stopper ten inches high and six inches wide (Exhibits A and A1). Claimant testified that he lifted the bottle of bromine water from its location and as he pulled it forward, the bottle struck another bottle and fell forward, spilling some of its contents onto his left hand and arm. He testified that the bottle continued to fall forward towards the outside of the fume hood and he tried to catch it with his right hand. In doing so, additional bromine water spilled and came into contact with his left hand (TT: 33-36). At trial, claimant demonstrated that the chemical burns to his left arm extended about 1.5 inches higher than what would have been the top of the 13 inch gloves issued by CUNY had he been wearing them at that time (TT: 38-39). Immediately following the accident, claimant, with the assistance of Domaradzki, went to the sink to place his arms under cold water (TT: 41, 44).
On cross-examination, claimant testified that in addition to the Organic Chemistry II lab, he had previously taken three other chemistry labs at Queens College and had received safety training in each lab class (TT: 45-46). As part of this safety training, claimant admitted that he was advised to use gloves when working with hazardous chemicals, but qualified his testimony by stating that gloves were to be worn when directed by the instructor (TT: 46-47). Claimant also admitted to receiving safety training in 2014 with a neuroscience lab for which he executed a sign-in sheet (TT: 47-55). Claimant did not recall whether he saw any stickers on the bottle of bromine as he lifted it out from the back left row of the fume hood (TT: 61-62).
The sign-in sheet for the Neuroscience Lab safety training session was received as Exhibit E. The Powerpoint presentation during the Neuroscience Lab safety training session was received as Exhibit L.
Claimant admitted that he had seen a sign posted in the Organic Chemistry II Lab course stating "Caution Gloves Required" (TT: 64-65). Claimant also admitted that additional signs were posted in the lab, including those depicted in photo Exhibits C and C1. He admitted that the required reading in the textbook at chapter 70 stated that he was to use care when working with bromine solution (TT: 65-66). However, claimant testified that he interpreted this to mean when working with bromine when contained in carbon tetrachloride (TT: 66-67). Claimant testified that he did not ask Domaradzki if he needed to take extra precautions when using bromine water, stating that when a new chemical was previously introduced by Domaradzki, he would provide the class with any necessary warnings (TT: 66-67). He also testified that in the three previous lab courses at Queens College, they were told to wear safety gloves only when instructed (TT: 77-78). TESTIMONY OF FRAIDA STREITER
Photographs of the sign were received as Exhibits B and B1.
Organic Experiments, ninth edition, by Kenneth L. Williamson, Chapter 70, entitled "Qualitative Organic Analysis" was received as Exhibit I.
Fraida Streiter testified that she was claimant's lab partner in Organic Chemistry Lab II. She testified that she was present the evening of the incident but did not witness it as she was on the other side of the room when the chemical spill occurred (TT: 82-83). Streiter was aware that claimant was performing an experiment with bromine water and she confirmed his testimony that they had never used bromine water before. She was also present when claimant was advised by Domaradzki to use bromine water. Streiter testified that she and claimant were uncertain of how to proceed with their experiment, so they had asked Domaradzki, who recommended that they try bromine water. She testified that Domaradzki did not advise them that bromine water was caustic, toxic or hazardous (TT: 83-84).
Streiter confirmed that claimant was not wearing safety gloves at that time and that Domaradzki did not say to him that it was necessary to wear gloves when handling bromine water (TT: 84-85). She testified that she wore safety gloves a limited amount of time during the lab class, estimating that she used them only 25% of the time and that she observed other students in the course using gloves similarly (TT: 85). Streiter testified that at the beginning of the semester, Domaradzki had instructed the class that they should wear gloves all the time but as the semester progressed, she and the other students would only wear them occasionally. She testified that Domaradzki had previously observed her working in the lab without gloves and did not tell her to put them on (TT: 85-86). Streiter testified that they were instructed to wear safety goggles at all times and that all of the students complied. She stated that if you did not wear your goggles, Domaradzki would yell at you. On the other hand, Streiter could not recall any instance in which Domaradzki yelled at a student for not wearing gloves (TT: 87-88).
On cross-examination, Streiter testified that on the date of the incident she wore gloves off and on during the lab. She stated that she wore the gloves that evening because she was at times working with acids, chemicals that she knew would be irritating to her skin (TT: 89). Streiter testified that she and claimant were doing different experiments with the same end goal that required that they use different chemicals (TT: 89-90). Streiter also confirmed that they were required to read chapter 70 from the textbook in preparation for the lab experiment on the date of the incident (TT: 91). TESTIMONY OF MACIEJ E. DOMARADZKI
At the conclusion of Ms. Streiter's testimony, the claimant rested his case. Thereafter, the defendant made an oral motion for a directed verdict dismissing the claim. After hearing oral argument from both parties, the Court reserved decision. The Court now denies the defendant's motion, finding that claimant has offered sufficient proof for a prima facie case of negligence and that questions of fact exist that prevent any determination as a matter of law.
Maciej E. Domaradzki is presently employed as the Vice President of Research and Development at Advanced Biotech in Totowa, New Jersey and teaches one organic chemistry lab at Queens College. Domaradzki has been teaching at Queens College since 2012 (TT: 108-109). He testified that as an undergraduate and graduate chemistry student, he was required to take chemistry labs and in each lab he was required to wear gloves and goggles. In addition, he stated that he purchased a lab coat so that he would not destroy his clothes with the chemicals (TT: 110-112).
Domaradzki testified that in the spring semester of 2015, he was teaching two lab courses, Organic Chemistry I and Organic Chemistry II. He described Organic Chemistry II as a lab course that follows a semester of organic chemistry and is designed to apply concepts learned in the class and apply them to organic experiments. He testified that any student taking the Organic Chemistry II lab course would have previously taken three chemistry lab courses (TT: 112-113). Domaradzki testified that at the beginning of each semester he would explain the requirements of the course and introduce the safety features of the classroom, including the safety shower, safety eyewash, fire extinguishers, as well as the required use of goggles and gloves. He also pointed out the safety precaution signs inside the lab. He testified that he instructed the students that they were to wear goggles and gloves at all times. Domaradzki testified that at the beginning of each lab class, he would introduce the topic for that day and remind students about safety when using chemicals and to wear their goggles and gloves when working with the particular chemical (TT: 114-115).
Domaradzki described the features of the safety hood, which he testified is designed to withdraw air from the classroom so that you are not exposed to the fumes generated by the chemicals. In the event of a spill, the safety hood also prevents exposure to the harmful effects of the chemicals. He similarly described the dimensions of the table and added that there is safety glass in the front that can be lowered with an 18 inch opening so that students can place their hands inside the safety hood and watch through the glass as they work with the chemicals (TT: 116). He testified that the chemical tray inside the hood could have as few as two to three chemicals and up to as many as 30 chemicals, dependent upon the particular experiment (TT: 117-118).
Domaradzki testified that bromine water is a 2.8 solution of bromine dissolved in water. He testified that bromine water is usually placed in thick glass bottles with a ground glass joint or stopper. He stated that a ground glass joint is used on hard chemicals like bromine that will corrode metal screw caps. His testimony differed from claimant as he testified that the subject bottle of bromine water had a glass stopper with a polished top, not a cork stopper. On April 30, 2015, Domaradzki placed the bromine water in a 250 ml bottle (TT: 120). Domaradzki testified that chapter 70 of the textbook was required to be read prior to this particular lab class. He indicated that this chapter dealt with bromine as it described carbon tetrachloride which he stated is a solution of pure bromine dissolved in carbon tetrachloride that is used for testing the saturation of unsaturated compounds. Domaradzki testified that an unsaturated compound will react with bromine to form a di-bromide and change the color of the solution (TT: 122-123).
Domaradzki testified that on the day of the incident, the students had not worked with most of the chemicals that would be utilized that day. He testified that he gave them "an extensive talk" on safety, that they would be using chemicals they had never used before and should take "extreme caution" while handling them and wear protective gear (TT: 124-125). He stated that the class on April 30, 2015 started at 6:30 p.m. and work on the experiment began about 8:00 p.m. Domaradzki testified that he helped claimant a few times during the class prior to his accident and that when he assisted him, claimant was wearing his goggles and green rubber gloves (TT: 127-128). He stated that with respect to the use of bromine water, claimant was told to read what was written in the manual and that he would find the bromine water on the tray under the fume hood. Domaradzki stated that he then went to assist another student and had his back to claimant. He stated that he then heard a scream and turned to see claimant with his hands stretched out screaming "it burns." Domaradzki testified that he then grabbed claimant and put his hands underneath the sink and started washing his hands. He stated that since claimant spilled the entire bottle of bromine water, he then had to evacuate the lab of the other students, whereafter he continued to wash claimant's hands (TT: 129-130). Domaradzki then prepared an incident report, Exhibit F, following the accident in which he stated, "Students should be required to use lab coats and nitrile gloves at all times, or not be allowed to participate in the lab session" (TT:132-133). He testified that he wrote this because it was the first time that he had an accident occur in one of his classes and he wanted to reinforce that students should wear gloves at all times because they had a habit of removing goggles and gloves throughout the experiments and then forgetting to put them back on (TT: 133).
On cross-examination, Domaradzki testified that no one had used the bromine water container prior to claimant and that the stopper was properly on top of the bottle as he had placed it there prior to the start of class (TT: 145). He testified that the bromine water bottle had a ground glass stopper and that it was properly in place when he put it inside the fume hood (TT: 147). He was also asked why he had written in the incident report that "students should be required to use lab coats." Domaradzki replied that he included this recommendation as a lab coat would provide students with an extra layer of protection (TT: 153-154). He testified that he did not recall any occasion that semester when he excused a student for failing to use the proper safety equipment. Domaradzki admitted to yelling at students if they were not wearing safety goggles or gloves (TT: 164-165). He admitted to seeing students not wearing gloves while in this lab course and stated that they took them off to answer cell phones or when going outside the lab (TT: 165-166). Domaradzki identified page 649 of the textbook (Exhibit I) as containing the section describing carbon tetrachloride (TT: 167). Domaradzki was asked why he did not use carbon tetrachloride for this experiment and he replied that he could not find it in any of the trays, so he used hexane instead. He explained that hexane was a more readily available solvent and has properties similar to carbon tetrachloride (TT: 167-168, 172). He was then directed back to the textbook at page 649, acknowledging a cautionary note stating "use care in working with the bromine solution" (TT: 177, Exhibit I).
On redirect examination, Domaradzki was referred to page 655 of the textbook, which contains a more specific cautionary note stating "Use great care when working with bromine. Should any touch the skin wash it off with copious quantities of water. Work in a hood and wear disposable gloves" (TT: 178, Exhibit I). Domaradzki testified that this reference to bromine is the same substance that was in the lab, adding that bromine is harmful to the skin because it is a very potent oxidizing agent (TT: 178-179). In answer to additional cross-examination, Domaradzki testified that the percentage of bromine in bromine water is the same percentage as in carbon tetrachloride (TT: 179-180). LAW AND ANALYSIS
The claim alleges that claimant's injuries arose from the negligence of CUNY, specifically, that CUNY failed to provide claimant with and direct the use of proper protective equipment, including appropriate-length gloves, lab coat or other protective gear; failed to warn claimant of the dangers associated with and the risk of injury from the use of bromine water; failed to make, provide and enforce proper written guidelines concerning the need for proper safety equipment; and violated all applicable laws, rules and regulations. The Court of Appeals has held that "[t]he threshold question in any negligence action is . . . [whether the] defendant owe[s] a legally recognized duty of care to [the] plaintiff" [Davis v South Nassau Communities Hosp., 26 NY3d 563 [2015], citing Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]). The claimant must not only demonstrate that the defendant owed a legal duty to claimant, but that this duty was breached and this was a proximate cause of his injuries [Pulka v Edelman, 40 NY2d 781, 782 (1976)]. The critical consideration in determining whether a duty exists is whether "the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm" [Davis, supra at 572, citing Hamilton, supra at 233).
It has been held that a college or university does not stand in the position of in loco parentis with respect to adult students who attend classes (Eiseman v State of New York, 70 NY2d 175, 190 [1987]; Talbot v New York Inst. of Tech., 225 AD2d 611, 612-613 [2d Dept, 1996]; Wells v Bard Coll., 184 AD2d 304 [1st Dept 1992]). This is not determinative, however, as to whether a duty exists between a college or university and one of its students. The determinative factor to establish whether a duty exists is whether the defendant possessed a sufficient degree of control over the subject event, and thus was under a duty to take reasonable precautions for the safety of the participants (Hores v Sargent, 230 AD2d 712 [2d Dept 1996]). In the present claim, the claimant was an enrolled undergraduate student at CUNY participating in an organic chemistry lab on campus that was taught by a CUNY employee. I find as a matter of law that CUNY exercised a sufficient degree of control so that it was in the best position to determine what reasonable precautions should be taken for the safety of students participating in an organic chemistry lab and therefore, a duty of care exists to take reasonable precautions for the safety of its students, including claimant.
The next issue to address is whether claimant established to a preponderance of the evidence that CUNY failed to take reasonable precautions for the safety of the students enrolled in the organic chemistry lab. The uncontroverted testimony established that this course was an advanced chemistry lab, requiring as a prerequisite a semester of organic chemistry and three prior chemistry labs. As such, the subject organic chemistry lab was not the first time that students would be working with hazardous chemicals. It is also uncontroverted that in those three prior chemistry labs, students were similiarly advised of safety procedures to be followed in the lab and when handling chemicals, the dangers generally inherent when working with chemicals, and the need to use safety equipment, which included the goggles and gloves issued by CUNY.
It is also uncontroverted that at the beginning of the semester, Domaradzki provided instruction on safety procedures and that the students were to use goggles and gloves. Domaradzki testified that he told them to wear the goggles and gloves issued by CUNY at all times. Streiter confirmed that statement in her testimony. The claimant's testimony differed to the extent that he recalled that they were told only to wear goggles at all times and that they would be instructed when it was also necessary to wear gloves. It is also uncontroverted that CUNY had signs posted inside the lab to remind students to use safety precautions while working with chemicals such as "Caution Gloves Required" (Exhibit B1), "Caution Toxic Chemicals" and "Wear Your Goggles" (Exhibit C1). As such, I find that the proof at trial demonstrated that CUNY took reasonable precautions for the safety of students by limiting this organic chemistry lab to students with a prior background in organic chemistry and three prior chemistry labs, all of which familiarized students with a general understanding of the safety procedures to follow in a chemistry lab and of the hazardous nature of chemicals. In addition, CUNY took reasonable precautions by restating these general safety instructions at the beginning of the semester in the subject organic chemistry lab, which included the requirement to use goggles and gloves. Finally, CUNY took reasonable precautions by posting warning signs inside the lab where the class was conducted which were identified to the students by Domaradzki at the beginning of the semester.
The duty to take reasonable precautions for the safety of the students, however, does not end there. This duty requires that CUNY's instructor adequately supervise the students and take reasonable precautions during each class to see that CUNY's safety procedures are followed and that the goggles and gloves are utilized as instructed. In this regard, I find compelling the testimony of the only non-party witness, Fraida Streiter, who I found to be very credible. Streiter's trial testimony disclosed that Domaradzki failed to enforce the requirement to wear gloves at all times when handling chemicals during the organic chemistry lab. Streiter testified that at the beginning of the semester Domaradzki did advise that they were to wear gloves at all times but as the semester progressed, she and the other students tended to wear them only occasionally, approximately 25% of the time. Streiter testified that she observed other students in the lab wearing their gloves a similar percentage of time. As previously stated, claimant's testimony was not consistent with Streiter's in one important respect in that he testified that they were only directed by Domaradzki to use gloves at the beginning of class on four prior occasions when a specific chemical would be utilized that was particularly hazardous. Most importantly, Streiter and claimant did testify consistently that on the day of the incident when claimant was directed by Domaradzki to use bromine water, he was not instructed to use gloves when handling it.
Streiter further testified that Domaradzki had observed her working in the lab without gloves prior to the incident and on those occasions he did not tell her to put them on. Streiter testified that Domaradzki had instructed them to wear goggles at all times and if you did not wear goggles, Domaradzki would yell at you to put them on. In comparison, she never observed him yell at a student for failing to wear gloves and during cross-examination, Domaradzki admitted that he observed students not wearing gloves in this organic chemistry lab. As a result, I find that CUNY was negligent in the enforcement of reasonable safety precautions during the subject organic chemistry lab by failing to require all students, including claimant, to wear gloves at all times when handling hazardous chemicals. I also find that it was a foreseeable danger that a student handling a container of a hazardous chemical could spill it and that the chemical liquid could come into contact with uncovered skin and cause chemical burns. As such, CUNY's failure to so instruct claimant to wear gloves when handling bromine water was a proximate cause of his ensuing chemical burns.
In defense of the claim, CUNY also alleges that it provided sufficient warning to claimant of the hazardous nature of bromine as precautions were detailed in the textbook reading assignment which claimant acknowledged reading prior to the subject organic chemistry lab. Domaradzki's testimony detailed two references in the reading material that specifically related to the hazards of bromine and that he claimed would notify students of its potentially dangerous nature. Streiter was never questioned whether she had read these two precautions. Claimant was asked and affirmed that he had read one precaution stating to use care when working with bromine solution. However, he testified that he interpreted this precaution to mean if working with bromine when included in carbon tetrachloride. He testified that he did not equate carbon tetrachloride to be the same as bromine water. Furthermore, Streiter testified that when Domaradzki told them to use bromine water with their experiment, he did not state that bromine water was caustic, toxic or hazardous. Accordingly, I find that claimant's testimony as to the meaning of the precaution and his failure to associate bromine water as equally hazardous to carbon tetrachloride was reasonable under the circumstances, especially since claimant had not worked with bromine before and Domaradzki did not advise claimant when instructing him to use bromine water that it too was caustic, toxic or hazardous. Accordingly, I do not find that the textbook precautions were sufficient to overcome or excuse CUNY's negligence in failing to enforce the safety procedures and the use of gloves in the subject organic chemistry lab when handling hazardous chemicals.
After evaluating the testimony of claimant, Streiter and Domaradzki and observing their demeanor while testifying, I find that Domaradzki's testimony, although credible on general matters, lacked credibility when it pertained to his own actions in the classroom on the day of the incident. I find that Domaradzki failed to advise claimant that bromine water was caustic, toxic, or hazardous or to instruct claimant that he must wear gloves when handling the container of bromine water. I find Streiter's testimony credible that wearing gloves at all times was not enforced in this organic chemistry lab and find equally credible the claimant's testimony that he was not wearing gloves immediately prior to the incident and was not instructed by Domaradzki to wear gloves when handling bromine water. I also find that it is both reasonable and credible that claimant did not understand that the precautions in the textbook referencing the use of bromine in carbon tetrachloride also referred to the use of bromine when combined with water. The failure of Domaradzki to require that claimant put on his gloves before handling the bromine water constitutes negligence and was a proximate cause of claimant's injuries.
As to claimant's alternative allegations to support a finding of negligence, I find that he did not establish that CUNY failed to provide proper safety equipment. Claimant provided no expert testimony to establish that the equipment provided, namely, gloves and goggles were not sufficient or that a lab coat should have been required and if so, that it would have prevented the chemical burns experienced by claimant. I also find that insufficient evidence was presented to conclude that CUNY was negligent for inadequate supervision or that a screw cap instead of a glass stopper should have been required on the bromine water container. I further find that claimant did not submit any proof to establish that CUNY failed to provide and enforce proper written guidelines concerning the need for proper safety equipment or that CUNY violated any applicable laws, rules or regulations. Accordingly, I do not find CUNY to be negligent on the basis of any of these alternative theories of recovery. Thus, upon weighing the evidence and considering all of the proof, I conclude that claimant has established by a preponderance of the credible evidence that CUNY owed him a duty, that the duty to provide reasonable precautions for the safety of students, including claimant was breached and that this breach was a proximate cause of claimant's injuries.
During the trial, claimant put on a glove similar to the one issued by CUNY for this organic chemistry lab to show that he suffered chemical burns on his left forearm approximately 1.5 inches above the top of the glove. The Court finds that this demonstration was insufficient to establish that the gloves were not reasonable and proper safety equipment for a chemistry lab. Claimant offered no expert testimony to demonstrate that the gloves issued by CUNY for this organic chemistry lab were deficient in any manner. Claimant also did not offer any proof to demonstrate that the burns 1.5 inches above the 13 inch glove were not caused simply by the spread of the bromine water on that part of his arm that would not have been exposed had he been wearing gloves.
I also find that claimant must bear responsibility for his injuries. CPLR § 1411 provides that in any action to recover damages for personal injury, the culpable conduct attributable to the claimant, including contributory negligence, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. I find that the evidence at trial established that claimant was familiar with the subject matter of organic chemistry and had previously completed three chemistry labs at CUNY; and was familiar with the safety procedures to be followed in a CUNY chemistry lab and the requirement to utilize goggles and gloves. I further find that the evidence established that the claimant failed to inquire of the instructor whether to wear gloves when working with bromine water; and thereafter spilled the bottle of bromine water, all of which were acts of contributory negligence that will not bar recovery but will diminish any award based upon his culpable conduct. As a result, I conclude based upon the evaluation of all proof offered at trial that liability should be apportioned 50% against the defendant and 50% against the claimant for the injuries sustained on April 30, 2015. Any objections upon which this Court reserved decision and any motions made at trial upon which the Court had previously reserved or which remain undecided are hereby all denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
Let interlocutory judgment be entered accordingly.
March 13, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims