Nostrom v. Chesterton (N.Y. Sup. Ct., Feb. 4, 2008)

Our plain-English summary of Nostrom v. Chesterton (New York Supreme Court, February 4, 2008).

Donald Nostrom's family sued A.W. Chesterton and other defendants over his death from mesothelioma. Nostrom was a boilermaker who worked for various contractors in electric generating plants. He testified that he was exposed to asbestos at the Bowline and Indian Point Powerhouses. Bechtel Corporation, now Sequoia Ventures, Inc., had been hired as general contractor there by Orange and Rockland and Con-Edison. Plaintiffs' claim against Sequoia rested on New York Labor Law 241(6) and on testimony that the air was dusty and that carpenters and insulators were cutting or using asbestos-containing products. They argued that Industrial Code air-contaminant rules made Sequoia liable for not providing a safe workplace. The court granted Sequoia summary judgment. It noted that the First Department had never treated those general regulations as a basis for 241(6) liability, and that the cases plaintiffs cited from other departments involved explosions in confined spaces. It added that, even if the rules applied, asbestos fibers come from the contractors' own work and are controlled by them, not by premises owners or general contractors. The claims against Sequoia were dismissed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: February 4, 2008
• Citation: 2008 NY Slip Op 33616(U)
• Docket: No. 102120/07
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted summary judgment to defendant Sequoia Ventures, Inc. (formerly Bechtel Corporation) and dismissed the Nostrom plaintiffs' Labor Law 241(6) claims against it.

What the court held. In this Department, the general air-contaminant regulations in section 12 of the Industrial Code do not support Labor Law 241(6) liability. Even if they applied, asbestos fibers created by contractors' own work are not the kind of contaminant they address.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Premises Owner Liability.

The people and their exposure

• Donald Nostrom: mesothelioma; died

The defendants

• Sequoia Ventures, Inc. f/k/a Bechtel Corporation (contractor)
• A.W. Chesterton (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Nostrom v. Chesterton (January 25, 2008). The court granted summary judgment to Central Hudson Gas & Electric Corporation and dismissed the Nostrom plaintiffs' Labor Law 241(6) and 200 claims against it.
• Nostrom v. Chesterton (January 25, 2008). The court granted summary judgment to defendant Orange and Rockland Utilities, Inc., dismissing the Labor Law 241(6) claim brought by Judith Nostrom, individually and for the estate of Donald Nostrom.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2008 NY Slip Op 33616(U)

DONALD NOSTROM and JUDITH NOSTROM, Plaintiffs,

v.

A.W. CHESTERTON, etal., Defendant.

No. 102120/07.

February 4, 2008.

Supreme Court, New York County.

HELEN E. FREEDMAN, Judge.

Upon the foregoing papers, it is ordered that this motion for summary judgment by defendant Sequoia ventures, Inc. f/k/a Bechtel Corporation, ("SVI") is granted.

Plaintiffs decedent was a boilermaker who died of mesothelioma after many years of working for various contractors in power houses (electric generating plants). Although he never identified Bechtel, he testified that he was exposed to asbestos while working at the Bowline and Indian Point Powerhouses. Orange and Rockland and Con-Edison had hired Bechtel Corporation to serve as general contractor during the time that Nostrom was there.

Plaintiffs claim is based on Labor Law 241(6) and rests on testimony that there was a lot of dust in the air and asbestos containing products were being cut or used by various carpenters and insulators.

Plaintiff contends that sections 12 NYCRR 12-1.4-1.6 of the Industrial Code that regulate air contaminants renders SVI liable for not providing a safe place to work. She cites Osorio v. Kenart Realty, Inc., 35 AD3d 561 (2 Dept. 2006) involving glue vapors and Piazza v. Frank L. Ciminelli Constr., Inc., 2 AD3d 1345 (4th Dept. 2003) involving an acetylene gas leak in which the Second and Fourth Departments specifically found that Labor Law 241(6) applied to violations of 12 NYCRR 12-1.4-1.9. In one case the Court dismissed the claims under 12 NYCRR 23-1.7(g) but found that 12 NYCRR 12 applied, and in the other that both applied. Both cases involved injuries from explosions caused by fumes and occurring in narrow unventilated spaces.

This Department specifically rejected an asbestos claim based on 12 NYCRR 23-1.7(g) where there was, as here, no evidence that plaintiff had worked in a "confined" unventilated or tested area. See Mazzocchi v. International Business Machines, 294 AD2d 151 (1st Dept. 2002). Unlike the Second and Fourth Departments, this Department has never found sections 12 of the Industrial Code to be a basis for liability pursuant to Labor Law 241(6) inasmuch as these are general regulations. Moreover, even if these sections applied, asbestos fibers are not the type of air contaminates envisioned by those regulations because the fibers result from the work that various contractors are doing rather than from an existing condition and, thus, are subject to the control of the particular contractors doing the work and not the premises owners or general contractors.

For the foregoing reasons the claims against SVI are dismissed and the Clerk is directed to enter judgment accordingly.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites