Suffolk County Water Auth. v Dow Chem. Co.
Annotate this CaseDecided on December 17, 2010
Supreme Court, Suffolk County
Suffolk County Water Authority, Plaintiff,
against
The Dow Chemical Company; I.E. DUPONT NEMOURS AND COMPANY; PPG INDUSTRIES, INC., LEGACY VULCAN CORPORATION (F/K/A VULCAN MATERIALS COMPANY); OCCIDENTAL CHEMICAL CORPORATION (individually and as successor-in-interest to DIAMOND SHAMROCK CHEMICAL COMPANY); BAYER CROPSCIENCE, INC., (individually and as successor-in-interest to STAUFFER CHEMICAL COMPANY); BOWE-PERMAC, INC., HOYT CORPORATION; R.R. STREET & CO. INC., COOPER INDUSTRIES, LLC., (individually and as successor-in-interest to MCGRAW EDISION COMPANY) AMERICAN LAUNDRY MACHINERY, INC., individually and d/b/a AJAX MANUFACTURING DIVISION AND MARTIN EQUIPMENT; ELEXTROLUX HOME PRODUCTS, (f/k/a WHITE CONSOLIDATED INDUSTRIES, INC., and d/b/a "WASHEX MACHINERY DIVISION") MONDIAL DRY CLEANING PRODUCTS, INC., (individually and d/b/a UNION DRYCLEANING PRODUCTS USA)" BERGPARMA OF AMERICA, LLC., FORENTA LP; WESTERN MULTITEX CORP; RENZACCI OF AMERICA; SAIL STAR USA, INC., (individually and d/b/a BOWE TEXTILE CLEANING USA); MULTIMATIC DRY CLEANING MACHINE CORPORATION; AMA UNIVERSAL; COLUMBIA DRYCLEANING MACHINES/ILSA DRY CLEANING MACHINE CORP.; FIRBIMATIC a/k/a ECO DRY OF AMERICA, INC.; GREENTECH; HOFFMAN/NEW YORKER, INC., MAESTRELLI; REALSTAR USA; SOVRANA; DIRECT MACHINERY SALES CORP; AND DETREX CORPORATION, Defendant.
24852-2010
Weitz & Luxenberg
William A. Walsh, Esq. 700 Broadway
New York, New York 10003
Alston & Bird, LLP
Gary D. Adamson, Esq.
90 Park Avenue
New York, New York 10016
Beveridge & Diamond, PC
Mark A. Turco, Esq.
477 Madison Avenue 15th floor
New York, New York 10022
Emily Pines, J.
In this complex tort action, brought by the Suffolk County Water Authority
(SCWA) against manufacturers and distributors of Perchloroethylene ("PCE") and manufacturers
and distributors of equipment intended for use with PCE, two named Defendants, Hoyt
Corporation ("Hoyt") and Electrolux Home Products, Inc ("Electrolux") move by Notice of
Motion (motion sequence numbers 002 and 008) to dismiss the complaint against them pursuant
to CPLR 3211 (a) (7) or for a more definite statement under CPLR 3024 (a). This Decision
examines what is required to state a claim under New York law.
In its complaint, SCWA states that it bears the responsibility of providing potable drinking water to over one million residents within the County. As part of its routine testing of such water, it claims to have detected PCE contamination in over 150 of its wells, requiring expensive remediation and prevention measures. The Plaintiff alleges that the contamination arises from two groups of entities, which it denominates in its complaint, as those that manufacture and distribute the chemicals ("Chemical Defendants") and those entities that manufacture, design and distribute equipment that they knew contaminated the environment through the release of PCE. The movants herein, Hoyt and Electrolux, are both named by Plaintiff as "Equipment Defendants".
Electrolux and Hoyt make similar legal arguments in support of their motions for identical relief. Essentially, they state that no specific allegations are made against their companies, setting forth the precise conduct of which the Plaintiff complains. In essence, they opine that SCWA has reversed the traditional burden of proof in civil tort actions, by requiring the Defendants to demonstrate by a fair preponderance of the evidence that they committed no tortious conduct. Both Defendants argue that Plaintiff has failed to connect their specific conduct to any particular harm caused and, therefore, cannot meet the causation element required to [*2]prove all torts.
With respect to the specific causes of action, Electrolux opines that SCWA's design defect claim must fail for want of any causation information; that the failure to warn cause of action must fail as its equipment is also compatible with safe products; that there is no requisite intent set forth to demonstrate SCWA's allegations of Trespass and Nuisance; and that to the extent that SCWA asserts conspiracy or seeks punitive damages, the knowledge and or reprehensible motives are absent from the pleading.
Hoyt asserts that since the complaint fails to identify a single dry cleaner or specific piece of equipment that caused the SCWA damage, the element of causation is clearly lacking. In addition Hoyt avers that the products liability action must fail since it does not identify what type of equipment was used by what dry cleaners contaminating which wells. Hoyt states that Plaintiff must set forth what specific equipment, located in which area, caused contamination of which wells.Hoyt also supports the bases for dismissal set forth by Electrolux in its motion.
SCWA claims that its complaint both names and then substantiates its five causes of action against the Equipment Defendants. These include 1) that such entities manufactured and sold dry cleaning equipment which used chlorinated solvents, predominantly PCE; 2) that the defendants failed to provide mechanisms to prevent and/or catch releases of this dangerous chemical from their equipment; 3) that the equipment defendants were aware of the discharge practices resulting from the use of their dry cleaning equipment including a customary practice of dumping PCE wastewater into public sewer systems or drywells; 4) that the equipment defendants instructed users that PCE and PCE products could be discharged into the ground, sewers or drywells, permitting PCE to contaminate sewers systems, and septic fields; 5) that the equipment defendants were aware that long-term groundwater contamination, pollution of water supplies and threats to public health were inevitable without precautionary measures, including warnings; and 6) that defendants' actions caused PCE to contaminate SCWA's production wells. Based on these factors, plaintiff argues that the complaint states causes of action, in tort, under its alleged theories of defective design, failure to warn, trespass, nuisance and negligence. Plaintiff states that it has not alleged a cause of action in civil conspiracy; however, it avers that its complaint sets forth sufficient allegations, which, if proved, would entitle it to punitive damages.
Both Electrolux and Hoyt have moved to dismiss the Plaintiff's complaint, asserting that, as written, it fails to state a cause of action under CPLR § 3211 (a)(7). This requires the Court to examine the complaint closely, for the allegations therein, on such a motion, must be accepted as true. See, Leon v Martinez, 84 NY2d 83, 614 NYS2d 972, 638 NE2d 511 (1994). The Court should grant such motions only where, viewing the allegations as true, the plaintiff still is unable to establish a cause of action. See, Cayuga Partners v 150 Grand, 305 AD2d 527, 759 NYS2d 347 (2d Dep't 2003). The standard is not whether the plaintiff has stated a cause of action in the complaint; but; rather, whether, the plaintiff has a cause of action. Id. Thus, the court must accept the facts as alleged in the complaint as true, accord the plaintiff every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Leon v Martinez, supra ; Kempf v Magida, 37 AD3d 763, 832 NYS2d 47 (2d Dep't 2007).
A cause of action in products liability may be based, inter alia, on alleged design defects as
well as a failure to warn of their danger. In a case based upon an alleged design defect, the
plaintiff must demonstrate that the manufacturer marketed a product that was not reasonablely
safe and that the defective design of the product was the proximate cause of the plaintiff's alleged
injury. Voss v Black & Decker Mfg Co, 59 NY2d 102, 463 NYS2d 398, 450 NE2d 204
(1983). As stated by the Court of Appeals in Voss v Black & Decker Mfg Co.:
We conclude that the proper standard to be applied should be whether the product
as designed was not reasonably safe' - that is, whether it is a product which, if the design defect
were known at the time of manufacture, a reasonable person would conclude that the utility of
the product did not outweigh the risk inherent in marketing a product designed in that
manner.
Id.Plaintiff must also demonstrate that the design
defect was a substantial factor in causing the injury alleged. Voss, 59 NY2d 102,110,
463 NYS2d 398, 403.
In a products liability action based upon a failure to warn, the plaintiff is required to demonstrate that the product did not contain adequate warnings and that such inadequacy was a substantial factor in causing the alleged injury. See, Marshall v Hannafin, 45 AD3d 55, 841 NYS2d 282 ( 1st Dep't 2007). [*3]
The necessary elements of the tort of trespass are 1)intent or recklessness; 2)entry by a person or thing upon land; and 3)in the actual or constructive possession of another. Curwin v Verizon Communications, 35 AD3d 645, 827 NYS2d 256 (2d Dep't 2006). The intent required is to perform the act that produces the injury. See, Phillips v Sun Oil Co, 307 NY 328, 121 NE2d 249 (1954). The essence of a private claim for nuisance is the interference with the use and enjoyment of another's land. Copart Industries, Inc v Consolidated Edison Co, 41 NY2d 564, 394 NYS2d 169, 362 NE2d 968 (1977); Haire v Bonelli, 57 AD3d 1354, 870 NYS2d 591 (2008). The elements of a claim for a public nuisance are essentially the same; 1) unreasonable interference with the rights of the public; 2)caused by defendant's conduct; 3)intentionally caused; and 4)which result in particular damage to plaintiff's use and enjoyment of its land. Haire v Bonelli, supra .
A review of Plaintiff's complaint reveals the following allegations made against both Equipment Defendant movants. Electrolux and Hoyt allegedly manufactured, distributed, designed, assembled, maintained, supervised, controlled, sold operated and/or repaired PCE equipment. These defendants designed or developed dry cleaning machines and equipment to use perchloroethylene and TCE, a related chemical formed by the breakdown of PCE. PCE does not occur naturally in the environment and presents a significant threat to public health and welfare, such information being publicly available to such defendants since the 1940's. The complaint goes on to state these defendants were aware of the typical discharge practices resulting from the custom of dumping PCE wastewater onto public sewer systems or drywells associated with septic systems. Notwithstanding such knowledge, the plaintiff alleges these defendants designed, manufactured and distributed dry cleaning equipment and parts to retail dry cleaners that utilized PCE. In addition, the complaint claims that the defendants issued instructions to the end users of the equipment that PCE and PCE products could be discharged into sewer systems and septic fields; and the defendants failed to warn the users of groundwater contamination as a result of such disposal and failed to instruct the proper means of disposal of the toxic chemicals. Inter alia, the complaint asserts that the Equipment Defendants routinely sent personal representatives to the premises of dry cleaners and observed improper disposal methods; issued written instructions to dry cleaning establishments for the operation and use of PCE; tested PCE products at such locations and unloaded and stored PCE at dry cleaners' establishments. The complaint goes on to state that these defendants encouraged drycleaners to use PCE without warnings; agreed through trade associations to attack what they perceived as [*4]threatening regulation of PCE and promoted unsafe disposal practices. As a result of such actions, SCWA claims Plaintiff's wells have been contaminated, creating a public health hazard. As a direct result of defendants' actions, plaintiff asserts that it must assess, evaluate, monitor, remove, clean up correct and abate PCE contamination in its wells at significant expense. In addition, as a result of what SCWA characterizes as intentional, wilful; conduct, it seeks punitive damages.
Based on the above, the Court finds that the SCWA has a cause of action against the two movants. While much of what it has stated may need to be demonstrated with specific information, as those Defendants assert in their moving papers, such will be done through the discovery process. For example, following an initial discovery conference, certain information regarding identification and location of wells has already been ordered by this Court. Whether the Plaintiff will be able to demonstrate proximate cause, as is obviously required in all of the alleged tort claims, will be borne out through that process. However, as set forth, the complaint places the movants on notice of the conduct, both intentional and negligent, with which it charges them; it gives notice of the manner in which some of the evidence exists; it sets forth the method by which the harm to the water system assertedly occurred; and it sets forth its basis for both compensatory and punitive damages. This does not mean such can be proved; however, it is sufficient to satisfy the requirements of CPLR § 3211 (a) (7). In view of the above, the Court has not been convinced that a more definite statement is necessary.
Based on the above, the motions by Hoyt and Electrolux are denied.
This constitutes the DECISION and ORDER of the Court.
Dated: December 17, 2010
Riverhead, New York
EMILY PINES
J. S. C.
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