203 A.D.2d 105 (1994)

610 N.Y.S.2d 487

Barbara E. Cawein, as Executrix of Charles Cawein, Deceased, Respondent, v. Flintkote Company, Appellant, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, First Department.

April 14, 1994

Charles Cawein (Cawein) worked from 1959 to 1985 in floor tile factories as a laborer, foreman, and supervisor. His work exposed him to raw asbestos fiber, and in 1985 he was diagnosed with metastatic lung cancer. He died in 1987. His executrix has brought this action against various asbestos suppliers and against defendant The Flintkote Company (Flintkote). Asserting that it has no records of having ever supplied asbestos to Cawein's plant, Flintkote moved for summary judgment on all claims against it on the ground that plaintiff has failed to adduce any evidence that asbestos-containing products from Flintkote were used by or near Cawein.

The only showing that Flintkote inhalable asbestos fibers were used in the tile plants in which Cawein worked was in an affidavit by a co-worker, John Cantwell, that he had seen a Flintkote bag or bags of fiber in the plant. He did not testify that he had ever seen a Flintkote bag opened or the fiber being used. It is not enough, however, that a bag or bags of Flintkote fiber be seen in the plant; it must be shown that plaintiff was exposed to asbestos fibers released from defendant's products (see, Celotex Corp. v Catrett, 477 U.S. 317, 320). Flintkote, in its deposition of Mr. Cantwell and in its examination before trial of Mrs. Cawein, has shown this failure in plaintiff's allegations and plaintiff has not come forward with evidence of an evidentiary nature to demonstrate the presence of this issue or of any other triable issue (see, Fried v Bower & Gardner, 46 N.Y.2d 765, 767; Shepard Oil Co. v Ryan, 62 A.D.2d 1074). Plaintiff has not presented evidentiary material creating a reasonable inference that Cawein inhaled asbestos fibers from a Flintkote product. Without some showing on this threshold question, there can be no possible finding of proximate cause in Flintkote's products. The cases involving this prerequisite are cases in Federal courts (see, e.g., Menne v Celotex Corp., 861 F.2d 1453, 1461-1462 [10th Cir]; Blackston v Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 [11th Cir]; Pongrac v Consolidated Rail Corp., 632 F.Supp. 126 [ED Pa]). They illustrate, however, a specific application of the principle of Fried v Bower & Gardner (supra) and Shepard Oil Co. v Ryan (supra).


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases