ELR Citation: ELR 20526
No(s). 92-CV-380C (W.D.N.Y. Jan 4, 1994)

The court holds that the federally required commencement date for statute of limitations purposes mandated by §309(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies to a married couple's personal injury claims against the husband's employer, which allege that the wife's bladder cancer was caused by the employer's failure to prevent the release of ortho-toluidine from its plant onto the husband's hair, skin, and street clothes. The wife allegedly contracted the cancer as a result of 25 years of exposure to ortho-toluidine through the handling of her husband's clothing and the spread of the chemical throughout their house. The court holds that New York's statute of limitations for personal injury claims does not bar plaintiffs' claims, because §309(a) tolls running of the state statute of limitations—which usually begins when the injury is discovered or diagnosed—until the date plaintiffs knew or reasonably should have known that their injury was caused by the hazardous substance. Thus, because the federally required commencement date under §309(a) is the date at which the wife knew or reasonably should have known that her cancer was caused by the ortho-toluidine on her husband's clothing, the wife's claim falls well within the three-year limitation period. The court holds that §309(a) applies regardless of the existence of an underlying CERCLA action. The plain language of § 309(a) does not require an underlying CERCLA action and legislative history suggests that §309(a) was intended to be an additional remedy not restricted to CERCLA actions. The court holds that CERCLA's definition of "release" includes carrying out of a workplace on employees' bodies and clothing hazardous chemicals that have the potential to cause injuries to those who come in contact with the employees.

Turning to the couple's claim for strict liability for abnormally dangerous activities, the court first holds that the issue is proper for summary judgment, because the threshold issue of whether an activity is so abnormally dangerous that the actor may be held strictly liable for the harm is a question of law. The court denies summary judgment, because it is unable to determine the application of five out of the six factors to be considered under New York law to determine whether an activity is abnormally dangerous. Finally, the court holds that plaintiffs have sufficiently supported their allegations of negligence, including the element of the duty that the employer owed to the wife. Plaintiffs established the employer's control over the chemical ortho-toluidine—a dangerous substance—and detailed the employer's duty to third parties, based on the foreseeability of the harmful effects of secondary exposure to the chemical.

Counsel for Plaintiffs
John N. Lipsitz
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria
42 Delaware Ave., Ste. 300, Buffalo NY 14202
(716) 849-1333

Counsel for Defendant
Diane F. Bosse
Volgenau & Bosse
1400 Main Seneca Bldg.
237 Main St., Buffalo NY 14203
(716) 856-8200