Court: Supreme Court of New York, New York County (NYCAL)
In these asbestos actions, defendant Burnham LLC moved for partial summary judgment seeking the dismissal of the plaintiffs’ punitive damage claims, arguing the plaintiffs failed to establish that Burnham’s conduct rose to the level of egregious and morally culpable conduct necessary for the award of punitive damages.
In the first matter, plaintiff Frank Passanisi worked as a painter from 1966 to 1986. He alleged exposure to asbestos from Burnham boilers from performing work on a Burnham boiler at his personal residence, and during his employment as a painter from cleaning asbestos on the boilers and from plumbers removing Burnham boilers in his presence.
In the second matter, plaintiff Stephen Desiena worked as a mechanic’s helper and carpenter from 1978 to 1989. He alleged that he was exposed to asbestos from Burnham boilers on 22 to 55 occasions while in the presence of workers demolishing and installing them.
In support of its motion, Burnham argued that any exposure to asbestos incurred by the plaintiffs through Burnham boilers was below the regulated threshold limits and permissible exposure limits (“PEL”). Burnham further cited a 2007 study conducted by William E. Longo, Ph.D. to support its position that the plaintiffs’ alleged exposure to asbestos was below the Occupational Safety and Health Act’s PEL. For these reasons, Burnham contended that its failure to warn did not rise to reckless and wanton disregard to support a claim for punitive damages.
The New York Court of Appeals has a gross negligence standard for purposes of punitive damages in toxic tort cases, holding that punitive damages are warranted when “the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.” Maltese v. Westinghouse Elec. Corp., 89 NY2s 955, 956-957 (1997).
Here, the court found that the Longo study was insufficient to support partial summary judgment on the issue of punitive damages as the study was not specifically performed on a Burnham boiler and provided no relevant information regarding the specific circumstances in which the plaintiffs alleged exposure. The court further noted that where a plaintiff provides evidentiary facts to show that a defendant’s warnings were in any way deficient, the adequacy of such warnings are a factual question that should be resolved by a jury. For these reasons, the court denied Burnham’s motion.