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Corporate defendants accused of exposing manufacturing workers to chemicals that caused birth defects in their children may not defend themselves by claiming that the plaintiffs did not take care to avoid dangerous levels of exposure, a Westchester County, N.Y., Supreme Court justice has ruled in a case of first impression. Justice John P. DiBlasi said that the companies could not defend themselves by alleging a breach of a duty owed by the parents to their own children, since it was not a duty owed to the general public. The decision came in the first case to approach trial of about 200 lawsuits brought on behalf of children born to workers at the International Business Machines Corporation semiconductor chip manufacturing facility in East Fishkill, N.Y. In a footnote, DiBlasi said that the case, Ruffing v. Union Carbide Corp., 4049/97, would serve as the “bellwether” case, in that it would likely be the forum in which key precedents would be laid down. DiBlasi rejected the defendant’s request for the court to weigh the contributory negligence, or comparative fault, of parents in causing the plaintiff child’s birth defects. Plaintiffs allege that IBM, Union Carbide Corporation and other defendants are responsible for exposing workers to various toxic chemical substances. While IBM operated the plant in East Fishkill, Union Carbide and others manufactured the allegedly toxic chemicals. Both the mother and father of the child worked in a section of the IBM’s East Fishkill plant called the “Mask House,” where they came into contact with several chemical agents. They claim that exposure to the chemicals resulted in their son, Zachary David Ruffing, suffering “numerous birth defects.” The opinion was not specific in naming the chemicals or the particular defects suffered by the child. The defendants answered the claim, in part, by saying that Zachary’s parents failed to exercise reasonable care in handling chemicals and disregarded warnings and safety procedures. Justice DiBlasi struck the defense, holding that under the New York statute on contributory negligence, the alleged fault of Zachary’s parents could not be imputed to the minor plaintiff. The defendants argued that the statutory language was intended only to bar claims based on negligent parental supervision. While DiBlasi agreed with the defendants’ reading of the statute, he did not agree that the contributory negligence allegation involved direct fault in handling the chemicals. He reasoned instead that the defendant’s claim was impermissible under the contributory negligence statute, since it was akin to an allegation of negligent parental supervision. DiBlasi said there were distinctions between the Ruffing case and several precedents cited by defendants. Under those precedents, the acts of the parents were viewed as exposing their children to dangers, and allowed to offset part or all negligence of the defendants. DIRECT VERSUS INDIRECT DUTY For example, the Appellate Division, 2nd Department, in 1999 permitted a defendant in a lead paint poisoning case to assert a counterclaim alleging that the parent, who painted the apartment, caused the exposure, defendants pointed out. But DiBlasi noted that in the cases cited by the defendants, parents were alleged to have breached a direct duty to the injured child, and contributed to the damages claimed in the lawsuit. In the 2nd Department case, Cantave v. Peterson, 266 A.D.2d 492 (2d Dept. 1999), the mother’s liability was based on the fact that she, in painting the apartment, breached a duty not to expose persons to a lead paint condition, DiBlasi said. In Ruffing, by contrast, DiBlasi reasoned that the parents were being accused of breaching a general duty, such as the duty of care in parental supervision. “The ‘factor that distinguishes’ instances in which actionable negligence has been found from ‘actions[s] predicated solely upon negligent parental supervision is the scope of the duty,’” observed DiBlasi, quoting language from a 2nd Department decision, Grivas v. Grivas, 113 A.D.2d 264 (2d Dept. 1985). The duty, to be alleged by defendants in a contributory negligence claim, must be one which is “ordinarily owed apart from the family relationship.” Therefore, the negligent supervision of children cannot form the basis for a comparative negligence claim, the court said. In Ruffing, the negligence attributed to Zachary’s parents is “within the scope of negligent supervision,” e DiBlasi concluded. “Even if [the mother] was aware of the potential risks of the chemicals to which she was exposed …, her failure to remove herself from the locations where they were being used is only a breach of duty owed to her unborn child, and not to the world in general,” he wrote. Since there was no allegation that a duty of care owed to the defendants or the general public was breached, the contributory negligence claim must be stricken, the court said. To allow the defense to lodge its claim would impair the rights of infant plaintiffs to recovery for injuries suffered where there is clear negligence by a defendant but a parental supervision error that may have brought the child into proximity of harm, the court indicated. Defense counsel in the case are Steven J. Phillips of Levy Phillips & Konigsberg in Manhattan, and William Deprospo of Deprospo, Petrizzo & Bartkett in Goshen, N.Y. Zachary and his mother are represented by Amanda Hawes of Alexander Hawes & Audet in San Jose, Calif. The trial is scheduled to begin on Jan. 17.

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