A Worker Exposed to a Toxic Substance used on the Job who Suffers Injury May Sue the Manufacturer

Simply stated, negligence is the doing of an act that a reasonably prudent person would not do under the same or similar circumstances. Negligence is also defined as the failure to do an act that a reasonably prudent person would do under the same or similar circumstances.

The above rule in our civil law is most commonly applied to motor vehicle accidents, defective premises, medical malpractice, and hospital malpractice. But the rule also applies to those rarer cases that fall within the category of “negligent entrustment”. The following is a simple example of this principle.

A is a worker in B’s factory that uses a certain substance in its regular course of business. A through years of exposure to the substance, develops a certain form of cancer. In New York, A cannot sue B his employer directly since his only remedy is through Worker’s Compensation. Under the theory of negligent entrustment however, A may have an action against C, the manufacturer of the substance claimed by A to have caused the cancer he contracted. To succeed, A must prove that C was negligent in entrusting its product to B, A’s employer. Negligence if any would depend upon whether C acted as a reasonably prudent manufacturer in marketing its product to B, A’s employer, without making a reasonable assessment as to whether B knew of the dangers to its workers if exposed to the product.

A similar situation was discussed in Weist v. E.I. DuPont DeNemours, reported in the New York Law Journal on March 28, 2012 (U.S. District Court, Western District of New York, Judge Schroeder Jr.). There, a worker was exposed to orthotoludine, a substance used in the manufacture of tires. Having been exposed to the substance for many years, the worker claimed he developed bladder cancer, and sued the manufacturer of the orthotoludine which was marketed to his employer, Good Year Tires. While the case dealt principally with procedural matters it once again brought to light the remedy available to a worker under the law of negligent entrustment.

Thus, negligence has an application that goes beyond its ordinary application (motor vehicle accidents, etc.). It focuses upon the common law rule applied in all jurisdictions that people, as well as corporations (both of which entities include manufacturers) have a duty to exercise reasonable care in their dealings with others, and should they be found by a jury to have breached that duty, the will be held accountable.