The opinion of the court was delivered by: Keenan, District Judge.
Plaintiff in this wrongful death and loss of services,
society and consortium action alleges that plaintiff's
decedent's death was caused by exposure to friable asbestos
while decedent was a student at Walt Whitman Junior High School
in Yonkers (the "school") between 1967 and 1970. This case
differs from the typical asbestos-related lawsuit in that
plaintiff has not sued asbestos millers, manufacturers or
distributors. Here, plaintiff has named the City of Yonkers and
its Board of Education (the "Board") as defendants, claiming
that these municipal entities failed to exercise reasonable
care in learning of the hazards of asbestos when the school was
constructed and while it was maintained.
On September 30, 1988 Judge Charles P. Sifton of the Eastern
District of New York, as supervisor of the Joint
Southern/Eastern District Asbestos Litigation, granted the
Board permission to join additional parties as defendants
pursuant to Fed.R.Civ.P. 19(a). The United States Gypsum
Company ("Gypsum") and Eli Rabineau, an architect involved in
the school's construction, are among the additional defendants.
The Board has filed a cross-claim for contribution and/or
indemnification against each of the additional defendants. The
lawsuit is presently before this Court on several motions. The
City of Yonkers and the Board have moved for summary judgment
pursuant to Fed.R.Civ.P. 56. Defendant Gypsum has cross-moved
pursuant to Fed.R.Civ.P. 12(b)(2) and 56 for dismissal of the
Board's cross-claim and pursuant to Fed.R.Civ.P. 11 for
sanctions against the Board. Defendant Rabineau also
cross-moves for summary judgment against the Board.
The Walt Whitman Junior High School in Yonkers was built in
1959 and remained open until 1982 when the Westchester
Commissioner of Health ordered the school's closing because the
asbestos health hazard had become critical. Plaintiff's
decedent attended the school between 1967 and 1970. Plaintiff
maintains that by 1967 asbestos which had been sprayed-on
portions of the school's ceilings began to fall in flakes and
chunks in the classrooms. Plaintiff contends that decedent's
exposure to asbestos at the school caused him to contract
mesothelioma, an always-fatal cancer of the lining of the lung,
which caused decedent's death in 1986.
Although the parties are unable to locate a copy of the
contract between Rabineau and the Board relative to the design
and construction of the school, Rabineau recalls that he was
commissioned by the Board to design the school in July, 1956.
See Rabineau Aff., ¶ 5. It is undisputed that the plans and
specifications developed by Rabineau for the school called for
the use of sprayed-on asbestos. Rabineau asserts that, to the
best of his recollection, sprayed-on asbestos was applied only
"to the cafeteria (dining area) and certain absorptive portions
of the ceiling in the auditorium." Id. at ¶ 8.
Rabineau submits that the use of asbestos-containing products
in the construction of schools was the generally accepted
practice of the architectural profession in the late 1950's and
indeed was not even questioned until the mid-1970's. Moreover,
all plans and specifications for school facilities in New York
State must be approved by the Bureau of Facilities Planning of
the New York State Education Department. The Bureau of
Facilities Planning approved the use of sprayed-on asbestos in
schools until 1979.
Guided by Rabineau's plans, construction of the school
commenced in 1958 and was completed in time for the
commencement of the Fall, 1959 term. Upon issuing a certificate
of completion, Rabineau's obligations under his contract with
the Board were satisfied. The contract did not provide for any
continuing duty to maintain the school on Rabineau's part, and
no express warranties were included in the contract.
A significant portion of the parties' submissions is devoted
to establishing the progression of knowledge of the risks
presented by exposure to asbestos. The Board relies heavily on
legislative findings and governmental agency reports to
buttress its contention that it could not reasonably have known
of the dangers of asbestos-exposure to students in
asbestos-containing schools through 1970.
It is undisputed that no federal or state safety standard
banning or regulating the use of asbestos in buildings was in
effect before 1973, when the federal Environmental Protection
Agency ("EPA") issued a ban on the use of sprayed-on asbestos
materials. See 38 Fed.Reg. 8,826 (1973). In 1979, New York
State introduced asbestos legislation in the School Asbestos
Safety Act of 1979. The legislative findings and purposes
statement which accompanies the statute notes that:
"substantial amounts of asbestos materials were
used throughout school buildings during the period
from nineteen hundred forty-six to nineteen
hundred seventy-two for fireproofing,
soundproofing, decorative and other purposes."
New York State Education Law, § 431(1)(a) [McKinney's 1988].
Similarly, in enacting the Asbestos School Hazard Detection
and Control Act, 20 U.S.C. § 3601 et seq. ("Asbestos Act"),
Congress found that:
"[d]uring the period 1946 to 1972, asbestos
materials, particularly in sprayed form, were used
extensively in the construction and renovation of
school buildings for fireproofing, insulation,
acoustical, and decorative purposes."
S.Rep. No. 710, 96th Cong., 2d Sess. 3, reprinted in 1980
U.S.Code Cong. & Admin.News 1426, 1428.
In the Asbestos Act, Congress directed the Attorney General
of the United States to ascertain the feasibility of recovering
"from any person determined" to be liable the costs of
detecting, removing, and replacing asbestos materials from
school buildings. 20 U.S.C. § 3607(b). In accordance with this
mandate, the Attorney General issued the "Attorney General's
Asbestos Liability Report to the Congress" in 1981 ("Attorney
General's Report"). The Attorney General's background findings
regarding the widespread use of asbestos in schools "through
the early 1970's" is consistent with the above findings the
Board adduces. See Attorney General's Report at p. 9. The
Report also notes that while the EPA banned the use of