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June 5, 1969

Nancy GASPERINO, as Administratrix of the Estate of Gregory Gasperino, Deceased, Plaintiff,
LARSEN FORD, INC., Defendant and Third-Party Plaintiff, v. FORD MOTOR COMPANY, Third-Party Defendant

The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

 This is a wrongful death action commenced by Mrs. Nancy Gasperino as the duly authorized administratrix of the Estate of Gregory Gasperino, deceased, against Larsen Ford, Inc., defendant and third-party plaintiff. Larsen has impleaded Ford Motor Co. Decedent, Gregory Gasperino, was at all relevant times an employee of the third-party defendant, Ford Motor Co. (hereinafter Ford) employed as an assistant district service manager. The court has jurisdiction of the parties and the subject matter of this action by reason of diversity of citizenship and an amount in controversy in excess of $10,000.00 exclusive of interest and costs.

 On April 6, 1964, the day decedent met his death, he was working in the basement of the premises of defendant Larsen Ford, Inc. (hereinafter Larsen).

 In the spring of 1964 the Ford Motor Co. introduced to the public for the first time a new model Ford known as the Mustang. Between the time of the arrival of these cars in New York from Detroit and the date for their first public showing Ford desired to keep this new model from public view for special promotional reasons. Lacking an indoor area capable of keeping some one hundred of the new cars under wraps, Ford made an arrangement with Larsen, a Ford dealer, to store the new cars in Larsen's basement storage area. Certain "make-ready" work was to be done on the Mustangs prior to the first public showing and Larsen knew of this fact. The task of readying these Mustangs for public viewing fell on decedent Gasperino and five co-workers, all of whom were highly qualified for their tasks. He was notified of his assignment on April 3, 1964, and proceeded to the premises of Larsen that same day to commence work on the Fords. Inasmuch as Ford planned to show the cars on April 14th decedent was forced to work on Friday, April 3rd, from 8:30 a.m. until 2:00 a.m., on Saturday, April 4th, and Sunday April 5th from 8:30 a.m. until 5:30 p.m., as well as on Monday, April 6th, from 8:30 a.m. until he was stricken, at approximately 2:30 in the afternoon.

 During the course of the preparation and pre-delivery check-up on the cars it was necessary to start and stop the engines of these vehicles in order to jockey them into position so that the necessary preparations could be done on the cars. Larsen knew, or should have known, of this fact, inasmuch as there were one hundred and thirty automobiles (100 of which were new Mustangs) enclosed in the basement area of some 20,000 square feet.

 The basement area of Larsen Ford in which the decedent and his fellow employees were working was provided with no mechanical ventilation, fans, ducts, pipes, hoses, or any other mechanical means of extracting gases, vapors or fumes from the atmosphere in the basement.

 Returning specifically to the events that occurred on April 6th, decedent was noticed slouched over in an automobile in the basement at approximately 2:30 p.m. Fellow employees, Fausel and Fritts, assisted him outside into the fresh air and observed that decedent was shaky, sweating excessively, and appeared to be in severe physical discomfort. At about the same time Fausel and Fritts also suffered nausea, dizziness, and weakness. The police were summoned and an officer responded immediately and administered between ten and fifteen minutes of oxygen to the decedent. In addition oxygen was administered to Fausel and Fritts, Gasperino's fellow employees. Decedent appeared revived after this administration of oxygen but shortly thereafter he complained of pains in his chest and was promptly taken to a nearby local hospital. At the hospital oxygen was again administered to Gasperino for not less than ten minutes. At approximately 3:50 p.m. that day, decedent died. An autopsy was performed the following day. The report of the autopsy stated that the cause of death was an atheromatous occlusion of the coronary arteries due to atherosclerosis. A subsequent toxicological examination of the blood sample disclosed a residue of 13.6 percent of carbon monoxide in the decedent's blood after death.

 Plaintiff called Dr. David H. Goldstein, a qualified toxicologist, to give his opinion of the cause of Gasperino's death. Based on an assumption of divers facts in evidence surrounding Gasperino's death, such as the working conditions in Larsen's basement storage area, the work that was being done there, the conditions of ventilation, the illness that beset Gasperino, the administration of oxygen to him, and, thereafter, the autopsy and toxicological report, Dr. Goldstein testified that Gasperino had inhaled enough carbon monoxide gas to cause him to suffer carbon monoxide poisoning, which poisoning in turn precipitated his fatal heart attack.

 Although the autopsy disclosed a preexisting progressive atherosclerotic heart disease it was uncontradicted that the decedent had no prior history of complaints of heart disease, no coronary profile, and was sufficiently well compensated to perform his normal duties without complaint up to the time he was stricken on April 6, 1964.

 The Westchester County Coroner, Dr. Bultman, who had performed the Gasperino autopsy was also called to testify as a witness. Dr. Bultman generally shared Dr. Goldstein's opinion. Dr. Bultman's testimony - that the carbon monoxide in decedent's blood contributed in part to decedent's death and was indeed a direct proximate cause of his death - remained unshaken, despite a vigorous attempt on cross examination to show that this testimony was inconsistent with his autopsy report. The court found the coroner to be an entirely impartial and believable witness. Accordingly, the court places great weight on his testimony. *fn1"

 The record is replete with testimony as to the percentages of carbon monoxide in the blood which would cause symptoms of carbon monoxide poisoning or cause instant death. Likewise, much testimony was introduced to explain the amount of pure oxygen and oxygen plus natural air needed to dilute the percentage of carbon monoxide in decedent's bloodstream to 13.6 percent, the amount found in Gasperino's blood after his death. An analysis of these figures would serve no useful purpose. Since no countervailing medical or scientific testimony was adduced the medical testimony presented to this court that Gasperino died of an atheromatous occlusion of the coronary arteries (a heart attack) which occlusion was proximately triggered by carbon monoxide poisoning, stands uncontradicted.

 Plaintiff's first legal argument is that the premises of Larsen Ford were in use as a factory within the meaning of §§ 299 and 316 of the Labor Law of the State of New York, *fn2" that on April 6th the basement area in which the decedent was working was a workroom in defendant's factory within the meaning of § 299 of that law, that the decedent on that date was a person within the class intended to be protected by §§ 299 and 316 of that law, and that defendant Larsen Ford violated § 299 by failing to provide mechanical ventilation as required therein. His second legal argument is that Larsen violated § 200 of the Labor Law by failing to provide decedent with a safe place to work. Larsen denies the applicability of these statutes to the facts of the case in hand, and in any event, cross claims against Ford Motor Co.

 Section 299 of the Labor Law of New York requires that each workroom in a factory be provided with proper and sufficient means of ventilation, natural or mechanical, as may be necessary. There is a provision that if dust, gases, fumes, vapors, fibers, or other impurities are generated or released in the course of the business carried on in any workroom of a factory in quantities tending to injure the health of the employees, then suction devices must be provided which will remove the impurities from the workroom by means of proper hoods connected to conduits and exhaust fans.

 "Factory" is defined by § 2(9) of the Labor Law to include a workshop or other manufacturing establishment where one or more persons are employed in manufacturing including making, altering, repairing, finishing * * * any article or thing in whole or in part and includes all buildings, sheds, structures, or other places used for or in connection therewith. Section 2(7) of that law defines "employed" to include "permitted or suffered to work." Thus by statutory definition the court concludes that Gasperino was employed in Larsen's basement since it is clear that he was "permitted or suffered" to work there at the time of his accident. Likewise, ...

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