Worker Who Did Not Personally Handle Asbestos Products Can Nonetheless Pursue Mesothelioma Claim

A man who worked as a cashier at a diner housed in a trailer on property owned by The Long Island Rail Road (“LIRR”) in the 1970s can proceed with his claim against the LIRR that he got mesothelioma from being exposed to asbestos that railroad workers brought into the eatery on their clothes, even though he did not personally work with asbestos. The LIRR’s motion for summary judgment was denied in Frieder v. Long Island Railroad, 190212/12, in a decision by Manhattan Supreme Court Justice Sherry Klein Heitler dated May 17.

The plaintiff Morton Frieder worked at the Dashing Dan Diner that was situated in a trailer on the grounds of the LIRR’s now-defunct Morris Park maintenance facility in Queens from 1972 to 1979. The diner was privately owned, but its owner had an agreement to serve only LIRR employees.

Frieder had testified that, while he worked at the diner, LIRR workers would come in covered in dust, which they would stomp off their boots and shake off their gloves and clothes. Frieder estimated that he served about 200 employees a day. By the end of the day, he said, there was “dust all over the place,” requiring heavy sweeping.

Deposition testimony of Mr. Frieder and an LIRR employee established that asbestos was routinely used at the Morris Park facility and that Mr. Frieder served LIRR employees who were covered in work-related asbestos dust. The LIRR employees who patronized the Diner belonged to trade unions. They included electricians, carpenters, machinists, and metal workers.

Justice Heitler reasoned that it was the LIRR and not the private owner of the trailer that housed the diner who was responsible because the LIRR controlled the circumstances of the Diner and was in the best position to identify and remedy use of asbestos on the premises that allegedly gave rise to Mr. Frieder’s injury. According to the court’s decision, the LIRR owned the Morris Park facility and maintained a fence and front gate which prohibited entry into the yard by the general public. The LIRR had exclusive control over the working conditions within the repair yard. Its employees made up all of the Diner’s patrons. The LIRR supplied power and heat to the Diner. It also appeared that the LIRR had some say over the Diner’s operating hours.

The trailer’s owners had no control over the land on which the Diner sat, the systems to which it was connected (i.e. heating and power), the materials that were used at the Morris Park facility, or the LIRR employees who are alleged to have carried asbestos dust on their work clothes into the Diner.

An article in The New York Law Journal on about the decision noted that the diner took its name from an LIRR logo then in use, which showed a harried commuter, “Dashing Dan,” running to catch a train. It was accompanied by a slogan, “The Route of the Dashing Commuter.”

Justice Heitler rejected the defendants’ contentions that the proof that Mr. Frieder was exposed to asbestos was insufficient, and that allowing the suit to proceed would lead to limitless liability due to the fact that, on occasion, vendors and family members of Diner employees visited the Diner. It appears likely that the decision will be appealed.

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