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BARNETT v. CITY OF YONKERS

February 8, 1990

DIANE BARNETT, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF RICHARD BARNETT, M.D., PLAINTIFF,
v.
THE CITY OF YONKERS AND THE BOARD OF EDUCATION OF THE CITY OF YONKERS, UNITED STATES GYPSUM COMPANY, U.S. MINERAL PRODUCTS, THE CELOTEX CORPORATION, STUART MUELLER ASSOCIATES, INC., AND ELI RABINEAU, DEFENDANTS.



The opinion of the court was delivered by: Keenan, District Judge.

OPINION AND ORDER

BACKGROUND

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.

FACTS

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. ยง 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 sprayed-on ...


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