This is an action for negligent exposure to toxic fumes to which plaintiffs were exposed while defendant was painting. Defendant moved for summary judgment on the ground that because plaintiffs injuries were pre-existing, plaintiffs cannot establish the element of causation.

Plaintiff Michael Spiegel and his wife, plaintiff Helen Spiegel, reside in a single family home located at 6 Hilton Street, in Lynbrook. Defendant, Fine Paint Company, is a painting contractor with an office and painting facility located at 25 Hutcheson Place, across the street from plaintiffs residence. Plaintiffs allege that on May 9 and 16, and September 29, 2003, they were exposed to toxic fumes while defendant was painting at the facility and using high-powered fans to blow out the vapors.

Plaintiffs allege that defendant was negligent in failing to vent and exhaust the toxic fumes in a reasonably prudent manner, causing plaintiffs to suffer respiratory problems and other related injuries. Plaintiffs further allege that defendant was notified of the danger of injury when plaintiffs complained to the village on May 15, 2003.

Both plaintiffs have a history of respiratory problems pre-dating the painting incident. Michael has had asthma for a number of years. He is also a long-term smoker and keeps animals in his house, including cats, birds, and squirrels, all of which may have contributed to his respiratory condition. Helen was diagnosed with a sleep disorder caused by upper airway obstruction in 1996. She had surgery on her uvula to relieve the condition at that time. She too has been a smoker for many years, albeit intermittently.

Defendant moved for summary judgment, arguing that because of plaintiffs pre-existing conditions they cannot establish the element of causation.

Plaintiffs Must Prove Defendants Negligence

The court held, To establish a prima facie case of negligence, plaintiff must prove 1) that defendant owed a duty to plaintiff, 2) a breach thereof, and 3) injury proximately resulting therefrom. In order to establish the third element, proximate cause, plaintiff must show that defendants negligence was a substantial factor in bringing about the injury. If defendants negligence were a substantial factor, it is considered to be a proximate cause even though other substantial factors may also have contributed to plaintiffs injury.

Defendant will be liable for all injuries caused by defendants negligence, even if plaintiff has a physical condition that makes plaintiff more susceptible to injury than a normal, healthy person. Thus, for example, a defendant will be liable for all injury negligently caused to plaintiffs respiratory system even if plaintiffs lungs or bronchial tubes are more sensitive or vulnerable than those of a normal person.

On the other hand, where plaintiff has a pre-existing condition that is aggravated as a result of defendants negligence, defendant is liable only for any increased pain and suffering resulting from the aggravation. Stated simply, plaintiff may recover only for damage caused by aggravation of the pre-existing condition, not the condition itself.

For example, if plaintiff suffered from a respiratory condition which interfered with breathing, plaintiff could recover for any increased pain and suffering caused by defendants aggravation of the respiratory condition, but not for the respiratory condition itself.

Defense Must Show Absence of Material Issues of Fact

On a motion for summary judgment, it is the proponents burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial.

There is no dispute that plaintiffs were subject to pre-existing respiratory ailments. However, on this summary judgment motion, it is defendants burden to make a prima facie showing that its manner of painting did not aggravate plaintiffs respiratory conditions. In support of its motion, defendant has submitted depositions and unsworn medical reports to the effect that smoking and exposure to pets and household products may have contributed to plaintiffs respiratory conditions. Notably absent from defendants papers is any type of scientific proof that the method of painting which defendant used did not result in fumes or paint particles being discharged into the surrounding atmosphere. Nor has defendant submitted any medical proof, as from an allergist or pulmonary specialist, that the type of paint used by defendant did not contain any substances harmful to the human respiratory system. The court concludes that defendant has not met its burden of making a prima facie showing that its negligent manner of painting did not aggravate plaintiffs respiratory conditions.

Since defendant has not met its burden of making a prima facie showing of entitlement to judgment as a matter of law, defendants motion for summary judgment is in all respects denied.

Spiegel v. Fine Paint Co., NYLJ 9/13/06 (Supreme Court, Nassau County) (Palmieri, j) (index no. 014940/04) (Decided: August 28, 2006)