| Baity v General Elec. Co. |
| 2011 NY Slip Op 05888 [86 AD3d 948] |
| July 8, 2011 |
| Appellate Division, Fourth Department |
| Doris Baity et al., Respondents-Appellants, v General ElectricCompany, Appellant-Respondent. |
—[*1] Faraci Lange, LLP, Rochester (Stephen G. Schwarz of counsel), forplaintiffs-respondents-appellants.
Appeal and cross appeal from an order of the Supreme Court, Cayuga County (Thomas G.Leone, A.J.), entered October 18, 2010. The order denied the motion of defendant for summaryjudgment and denied the cross motion of plaintiffs for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking to recover for damages to theirproperty arising from the discharge of toxic chemicals into the ground from an industrial plantformerly operated by defendant, as well as medical monitoring costs associated therewith.Plaintiffs asserted causes of action for, inter alia, negligence, public nuisance and trespass.Defendant contends on appeal that Supreme Court erred in denying its motion for summaryjudgment dismissing the second amended complaint, and plaintiffs contend on their cross appealthat the court erred in denying their cross motion for partial summary judgment on the issue ofthe source of the groundwater contamination of their real property. We affirm.
Before 1968, defendant used trichloroethylene (TCE) to clean metal parts at its plant anddisposed of the waste containing TCE by placing it in unlined earthen evaporation pits. It isundisputed that plaintiffs' drinking water wells were contaminated with TCE and its degradationproducts, i.e., dichloroethylene and vinyl chloride. Groundwater at defendant's plant site was alsofound to contain TCE. According to plaintiffs, their last exposure to any of those toxins occurredin the year 2000. It is also undisputed that plaintiffs have not to date manifested any disease as aresult of their alleged exposure to the toxins. In addition, the parties agree that the toxins arerapidly excreted by the human body and thus cannot be detected in plaintiffs' bodies by anyrecognized scientific or medical test or examination. Nevertheless, with respect to that part of itsmotion for summary judgment dismissing the claims for medical monitoring costs, defendantassumed, without conceding, that plaintiffs had been exposed to the toxins through the use oftheir contaminated water wells. Defendant's expert toxicologist also assumed but did not concedethat TCE, "in a sufficient dose, might pose a carcinogenic risk to humans."[*2]
In support of its motion, defendant relied on languagethat appears in our decision in Allen vGeneral Elec. Co. (32 AD3d 1163 [2006]) in contending that plaintiffs "must establishboth that [they were] in fact exposed to the disease-causing agent and that there is a rational basisfor [their] fear of contracting the disease" (id. at 1165 [internal quotation marks omitted];see Abusio v Consolidated Edison Co. of N.Y., 238 AD2d 454, 454-455 [1997], lvdenied 90 NY2d 806 [1997]). Defendant, however, offered no affirmative evidenceestablishing that plaintiffs' alleged exposure to TCE was not capable of causing cancer or thatplaintiffs were not exposed to sufficient levels of TCE to cause cancer (see Parker v Mobil Oil Corp., 7 NY3d434, 448 [2006], rearg denied 8 NY3d 828 [2007]). Indeed, defendant merelyasserted, e.g., that "plaintiffs cannot and do not have admissible proof," and that "plaintiffs[ ]have insufficient evidence."
We conclude that the court properly denied that part of defendant's motion for summaryjudgment dismissing the claims for medical monitoring costs. We note at the outset that plaintiffsdo not seek damages for emotional distress based upon their "fear of developing cancer"(Wolff v A-One Oil, 216 AD2d 291, 292 [1995], lv dismissed 87 NY2d 968[1996]; see Conway v Brooklyn Union Gas Co., 189 AD2d 851 [1993]). Rather,plaintiffs' "theory of liability [for medical monitoring damages] grows out of the invasion of thebody by the foreign substance, with the assumption being that the substance acts immediatelyupon the body[,] setting in motion the forces [that] eventually result in disease" (Askey vOccidental Chem. Corp., 102 AD2d 130, 136 [1984]). Under that theory, "defendant is liablefor 'reasonably anticipated' consequential damages [that] may flow later from that invasionalthough the invasion itself is 'an injury too slight to be noticed at the time it is inflicted' "(id.; see Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 300-301 [1936]).Thus, contrary to defendant's contention, in order to establish its entitlement to judgment as amatter of law dismissing the claims for medical monitoring costs, defendant was required to"establish with a degree of reasonable medical certainty through expert testimony. . . that such expenditures are [not] 'reasonably anticipated' to be incurred by reasonof [plaintiffs'] exposure" to TCE (Askey, 102 AD2d at 137). To the extent that ourdecision in Allen holds otherwise, it is no longer to be followed.
It is well established that "[a] moving party must affirmatively establish the merits of itscause of action or defense and does not meet its burden by noting gaps in its opponent[s'] proof"(Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]; see Swimm v Bratt, 15 AD3d 976,977 [2005]). Here, defendant failed to submit any evidence establishing to a reasonable degree ofmedical certainty that the costs of future medical monitoring are not reasonably likely to beincurred as a result of plaintiffs' exposure to TCE (cf. Hellert v Town of Hamburg, 50 AD3d 1481, 1482 [2008], lvdenied 11 NY3d 702 [2008]).
We reject defendant's further contention that the court erred in denying that part of its motionfor summary judgment dismissing the "claim" for punitive damages. First, although thecomplaint alleges reckless conduct sufficient to support an award of punitive damages, it doesnot in fact assert such a claim. Second, in any event, defendant failed to submit evidence entitlingit to that relief inasmuch as, with respect thereto, defendant submitted only an attorney's affidavitcontaining a conclusory footnote, which had no evidentiary value. Third, we note that thedetermination whether a plaintiff is entitled to an award of punitive damages "should 'reside inthe sound discretion of the original trier of the facts,' " i.e., at the time of trial (Fordham-Coleman v National Fuel GasDistrib. Corp., 42 AD3d 106, 114 [2007], quoting Nardelli v Stamberg, 44NY2d 500, 503 [1978]).
We reject defendant's contention that its disposal of TCE on its property prior to 1968 wasnot negligent as a matter of law and thus that the court should have granted that part of its motionfor summary judgment dismissing the negligence cause of action. The statements of defendant'sexperts that defendant "comported with industry standards [do] not establish as a [*3]matter of law that [defendant] was not negligent" (Gardner vHonda Motor Co., 214 AD2d 1024, 1024 [1995]; see Trimarco v Klein, 56 NY2d 98,106-107 [1982]). Moreover, "[i]rrespective of the absence of a statutory [or regulatory]obligation, [defendant] remain[ed] subject to [its] common-law duty" (Jacqueline S. v City ofNew York, 81 NY2d 288, 293 [1993], rearg denied 82 NY2d 749 [1993]; seealso Mercogliano v Sears, Roebuck & Co., 303 AD2d 566 [2003]). Inasmuch as defendantfailed to submit sufficient evidence establishing its entitlement to judgment as a matter of law,the court properly denied that part of the motion with respect to the negligence cause of action,regardless of the sufficiency of plaintiffs' opposing papers (see generally Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). We reject defendant's further contentionthat the court erred in denying that part of its motion for summary judgment dismissing the causeof action for trespass. We conclude that there are triable issues of fact whether defendant had"good reason to know or expect" that the toxins would pass from its industrial plant to plaintiffs'property (Phillips v Sun Oil Co., 307 NY 328, 331 [1954]; see Hilltop Nyack Corp. vTRMI Holdings, 264 AD2d 503, 505 [1999]).
With respect to that part of defendant's motion for summary judgment dismissing the publicnuisance cause of action, it is well settled that the seepage of chemical wastes into a public watersupply constitutes a public nuisance (see generally Copart Indus. v Consolidated Edison Co.of N.Y., 41 NY2d 564, 568 [1977], rearg denied 42 NY2d 1102 [1977]; State ofNew York v Monarch Chems., 90 AD2d 907 [1982]). Nevertheless, "[a] public nuisance isactionable by a private person only if it is shown that the person suffered special injury beyondthat suffered by the community at large" (532 Madison Ave. Gourmet Foods v FinlandiaCtr., 96 NY2d 280, 292 [2001], rearg denied 96 NY2d 938 [2001]). We concludethat defendant failed to meet its burden of establishing that the contamination of plaintiffs'private water wells did not constitute a special injury beyond that suffered by the public at large(see Booth v Hanson Aggregates N.Y.,Inc., 16 AD3d 1137, 1138 [2005]).
We reject defendant's contention that the court erred in considering the opposing affidavits ofplaintiffs' experts, i.e., a geography professor with 25 years of experience in researchinghistorical waste management practices and water pollution, and an environmental attorney withover 35 years of experience in drinking water supply contamination litigation and enforcement ofthe Clean Water Act through employment with the United States Environmental ProtectionAgency between 1973 and 1986. "It is within the sound discretion of the trial court to determinewhether a witness [is qualified] as an expert[,] and that determination should not be disturbed 'inthe absence of serious mistake, an error of law or abuse of discretion' " (Saggese v MadisonMut. Ins. Co., 294 AD2d 900, 901 [2002], quoting Werner v Sun Oil Co., 65 NY2d839, 840 [1985]). Contrary to defendant's contention, "[t]he expert[s'] qualifications go to theweight rather than the admissibility of" the opinions in their affidavits (Williams v Halpern, 25 AD3d467, 468 [2006]).
Finally, we conclude that the court properly denied plaintiffs' cross motion for summaryjudgment on the issue of the source of the contamination. The papers before the court on thatissue "presented a credibility battle between the parties' experts, and issues of credibility areproperly left to a jury for its resolution" (Barbuto v Winthrop Univ. Hosp., 305 AD2d623, 624 [2003]). Present—Centra, J.P., Fahey, Carni, Sconiers and Green, JJ.