Neuer v. American Art Clay Co.

NEW YORK COUNTY
Torts

New York Law Journal

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Justice Sherry Klein Heitler

Defendants, including Metro-North Commuter Railroad, moved jointly for summary judgment dismissing the complaint arguing Neuer failed to show they were responsible for his asbestos-related injuries under the Federal Employers' Liability Act (FELA) for negligently creating an unsafe workplace. Neuer started working for the railroad in 1972 and left work in June 1989. He claimed he was exposed to asbestos from working with steam lines and electrical equipment throughout his railroad career. Plaintiffs asserting a negligence claim under FELA must establish the traditional common law elements of duty, breach, foreseeability and causation of injury. The court found Neuer's testimony alone was sufficient to raise a triable issue of fact if he was exposed to asbestos. Neurer's expert opined the railroads knew as early as 1973 that asbestos was hazardous, but chose to continue to permit the use of asbestos-containing products. Another expert concluded with a reasonable degree of medical certainty that Neuer's mesothelioma was caused by his exposure to asbestos. Thus, the court concluded an issue of fact was raised if Neuer's asbestos exposure as a railroad employee caused his injuries. Defendants' motions for dismissal were denied.

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