Asbestos litigation is a complex and, if you were friends with former Speaker of the New York State assembly and convicted felon Sheldon Silver, lucrative field.  Chances are that you have seen (in New York, at least) commercials for Weitz & Luxenberg “victims of mesothelioma, the lethal cancer linked to asbestos exposure, claiming the billions set aside” for liability.  Unfortunately, construction and demolition workers are exposed to an increased risk of asbestos exposure.  Plaintiff’s firms tout the high settlement or verdict numbers, often in the aforementioned commercials. Who bears liability for exposure is often a particularly fact sensitive matter.

In a recent decision the Matter of New York Asbestos Litigation – Phyllis Brown, as Administratrix of the Estate of Harry E. Brown v. Bell & Gossett Company and Consolidated Edison of New York, the Appellate Division, First Department, reversed the trial court’s order granting defendant Consolidated Edison’s post-trial motion to set aside the verdict against it and dismiss the complaint, reinstated the verdict and directed a new trial on damages for the loss of consortium.  The Appellate Division found that the trial court improperly set aside the plaintiff’s verdict on the Labor Law Section 200 claim against Con Edison.  The evidence at trial demonstrated that Con Edison had the “authority to control the activity bringing about the injury.”

In 1964-65 the decedent was employed as an asbestos insulation installer and his employer was subcontracted by the three major contractors at defendant Con Edison’s power plaint in Ravenswood, NY.  The contracts between Con Edison or its general contractor and the three contractors required that each contractor provide a foreman in charge of its specific work and that Con Ed would inspect all contractors’ work periodically to ensure compliance with contract specification as well as to enforce general safety at the site.  The contracts further provided that whenever work generated harmful dust, the contract was obligation to install and maintain equipment that protected the plant and workers against such dust.  Decedent was exposed to asbestos containing dust while working at the Ravenwood site, where ventilation was inadequate and the workers did not wear masks.  He further testified that he took his work instruction from his employer’s foreman, and never spoke with or received any direction from anyone from Con Ed while at the site.  Con Ed’s engineers and construction managers testified that they monitored the work to ensure that the contractors performed their work productively, safely and according to a preset schedule.   The employer’s foreman tested that the general contractor would coordinate the trades through a schedule and that job specification would have been approved by Con Ed.

The Appellate Division held that Con Edison had the ability to prevent the hazed ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing material.  Con Edison’s specifications affirmatively requested the use of hazardous asbestos contain insulation materials and Con Edison monitored work for compliance with those specifications.   The presence of Con Ed personnel at the work site to monitor the progress of the work under a preset schedule, and to inspect the project to confirm the work was performed in accordance with the contract specifications, as well as Con Ed’s authority to enforce general safety standards was indicative of a general right of inspection, not supervision control.

The trial court’s overturning the jury verdict is unusual and drastic.  Based on that, perhaps it is not surprising that, in another unusual and drastic act, the Appellate Division ultimately reversed the trial court and reinstated the verdict.   To be sure, post-verdicts settlements arise because of situations just like this one.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.