Waste Facility Liability For Toxins Resulting in Personal Injury or Wrongful Death in NY

On June 29, the New York Times reported on a tragic story involving 3 men who were killed when they were overcome by toxic hydrogen sulfide fumes that emanated from a well they had been hired to vacuum out by a Queens-based recycling company located on Douglas Avenue in Jamaica, opposite the Long Island Railroad. According to a Fire Department spokesman, their investigation revealed that the hydrogen sulfide found in the well was more than twice the amount that is considered "imminently dangerous," and that it likely proved deadly to these 3 men in under 10 minutes. On the other hand, this spokesman conceded that the source or origin of this deadly gas was not presently known. This leads to an important, albeit uncomfortable question: can anyone be held liable for the wrongful death of these 3 men who were hired to clean out the well? If so, under which theories of law?

Although a comprehensive discussion of the answer to this question is well beyond the scope of a blog post (a more detailed discussion of some of these topics can be found in "Why There Are So Few Successful Defective Products Lawsuits") the most likely theories of recovery are the following, each of which presents its own unique challenges:

• Negligence - under this theory, the plaintiffs will have to show that the defendants failed to keep their premises safe for all foreseeable visitors (which should not be difficult in this circumstance), and that they either knew or should have known that their premises had this particular hazard, but failed to remedy the problem in a timely fashion before the accident occurred (a far more daunting thing to prove).
  
• Strict Liability - under this theory, the plaintiffs will need to prove that their injuries (or death) was caused by exposure to a dangerous toxin or chemical (again, not too difficult to prove in this case), and that this chemical came from particular defendants. The latter part of this burden of proof will likely be far more difficult, especially when pursuing other companies beyond the recycler at whose premises the toxic exposure occurred.

Finally, it bears mention that anyone defending such a case will likely contend that the claims are barred by the doctrine of assumption of the risk, i.e., that these people were hired to clean out this hole, and knew full well the risk that it might contain toxic fumes, yet proceeded.

In short, although you might be inclined to think that a personal injury or wrongful death lawsuit arising out of this incident would be a "slam dunk," you would be mistaken.