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January 4, 1994

DOROTHY J. KOWALSKI and LOUIS KOWALSKI, JR., her spouse, Plaintiffs,

The opinion of the court was delivered by: JOHN T. CURTIN

 Plaintiffs Dorothy J. and Louis Kowalski, Jr., bring this action in negligence and strict liability against defendant Goodyear Tire & Rubber Company ("Goodyear"). The Kowalskis allege that Goodyear failed to prevent the release of ortho-toluidine, an abnormally dangerous hazard, from its Niagara Falls plant, contaminating the plaintiffs and causing Mrs. Kowalski to contract bladder cancer. The release occurred when Mr. Kowalski, a long-term employee of the defendant, left the plant each day. Although he showered and changed out of his work clothes, the configuration of the shower and locker facilities permitted the chemical to recontaminate his hair, skin, and street clothes.

 Plaintiffs seek recovery in strict liability for the release of an abnormally hazardous substance into the environment, for personal injury and loss of consortium which resulted from defendant's negligent actions, and for punitive damages.

 Goodyear moves for summary judgment on three grounds. First, it contends that the statute of limitations bars this action. Secondly, Goodyear asks that summary judgment be granted on the strict liability claim because plaintiffs have failed to define the abnormally dangerous activity of the defendant. Finally, it asserts that plaintiffs have failed to state a claim of negligence for which relief may be granted because they have not alleged as a necessary element the duty which Goodyear owed to Mrs. Kowalski.


 I. Standard for Summary Judgment

 Summary judgment may be granted if the pleadings, depositions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All ambiguities are resolved in favor of the non-moving party. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).

 II. Statute of Limitations

 A. Effect of State Statute

 The parties do not dispute that plaintiffs' claim is time-barred if they are forced to rely on the New York statute of limitations for personal injury tort. N.Y. Civ. Prac. L. & R. 214-c(2) (McKinney 1990) states that:

[The accrual date for] an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance . . . [is] the date of discovery of the injury by the plaintiff or . . . the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

 Section 214-c(4) extends the statutory limitation for situations in which the prospective plaintiff discovers the injury but cannot identify its cause. Subsection 4 provides for five years to discover the cause of illness, and one additional year to commence the action if the plaintiff can "demonstrate that the state of medical or scientific knowledge was such that causation of his injury could not have been identified within the three-year period . . . ." McLaughlin, Practice Commentaries, 7B McKinney 214-c(4).

 Mrs. Kowalski was diagnosed with bladder cancer on February 1, 1984. According to New York law, the injury is discovered for limitations purposes when it is diagnosed. Michael v. Ametelco, Inc., 150 Misc. 2d 507, 568 N.Y.S.2d 1003, aff'd, 175 A.D.2d 667, 573 N.Y.S.2d 945, appeal denied, 78 N.Y.2d 862 (1991). The commencement of the suit in June 1992 makes it untimely even with the application of the § 214-c(4) discovery extension.

 B. Federal Commencement Date Preemption

 The Kowalskis argue that their action is governed by the federally required commencement date preemption of the state statute of limitations pursuant to 42 U.S.C. § 9658, in the Superfund Amendments and Reauthorization Act of 1986 ("SARA") amendment to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). 42 U.S.C. §§ 9601-62 (1993). They claim that Congress passed this amendment expressly to circumvent the dilemma faced by prospective plaintiffs exposed to toxic substances whose actions were barred even before they knew of the cause of their injury. *fn1"

 The federally required commencement date delays the running of the state statute of limitations until "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages . . . were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." 42 U.S.C. § 9658(b)(4)(A). It "effectively creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury . . . ." Soo Line Ry. Co. v. B.J. Carney & Co., 797 F. Supp. 1472, 1487 (D. Minn. 1992). The Kowalskis claim that this mandated delay tolled the statute of limitations for their suit ...

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