Perri/Popadiuk Obtain Summary Judgment for One of Two Clients and Defeat Plaintiff’s Motion for Summary Judgment Based on Res Ipsa Loquitor in a Chemical Delivery Case

We represented the Defendants, Kuehne Chemical Company (“Kuehne”) and Coal City Cob Company (“Coal City”). Kuehne’s core competency is the manufacture of sodium hypochlorite, which is commonly known as bleach, and other water treatment chemicals. Kuehne hired Coal City to deliver a load of sodium hypochlorite to the North River Wastewater Treatment Plant in New York City. Plaintiff was a Sewage Treatment Worker for the New York City Department of Environmental Protection (“DEP”) and worked at the plant but was never involved in any type of chemical deliveries. At the time of the incident, the sodium hypochlorite was pumped into the wrong tank, triggering a pressure release, causing gas to be expelled into the air and creating a chemical cloud. Plaintiff alleged various pulmonary, psychiatric, and orthopedic personal injuries in attempting to evacuate the plant. The DEP, being Plaintiff’s employer and a non-suable entity, was previously awarded summary judgment.

We successfully argued that liability for a dangerous or defective condition on real property can only be imposed based on ownership, occupancy, control, or special use of that property, and that none of these factors applied to Kuehne. Kuehne did not deliver or unload any chemical product nor was responsible for the plant. No one at the plant made any requirement of Kuehne or gave any special instructions to Kuehne with respect to the delivery of chemicals on the date of the incident. Kuehne never directed the manner in which Coal City made chemical deliveries or told him how to make chemical deliveries or train, monitor or supervise Coal City drivers as to the method for making chemical deliveries. Kuehne was awarded summary judgment.

We also successfully opposed Plaintiff’s Motion for Summary Judgment against Kuehne and Coal City based on the doctrine of Res Ipsa Loquitor. “In order to invoke the doctrine of res ipsa loquitor, plaintiff must establish: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff”. Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 818 N.Y.S.2d 792 (2006). We argued that Plaintiff failed to establish that any instrumentality, including the hose used to make the delivery, and the tank, was in the exclusive control of Kuehne and Coal City. Neither were. Rather, the DEP’s practice and procedure was to look at the bill of lading paperwork, open the right tank into which the delivery is to be made, match the delivery tanker’s security seal tag number with the information on the manifest or delivery documents, direct the delivery driver to the appropriate receiving tank line for a specific delivery, oversee the connection process between the hose and the tank, verify that all of the valves are in the proper position and that only the fill lines to the receiving tank were open, unlock the appropriate fill line for the receiving tank, and direct the delivery driver to the appropriate connection on the receiving tank. Based on this testimony elicited from the deposition of the DEP witness, we successfully defeated Plaintiff’s summary judgment motion based on res ipsa loquitor.