Wojcicki v. Elbert Enterprises

Asch and Kassal, JJ.,

dissent in a memorandum by Kassal, J., as follows: The judgment reversed by the majority was entered upon a unanimous jury verdict, reached after a nine-day trial. Because the record amply supports the determination of the triers of fact, I respectfully dissent.

On November 10, 1982, Maria Wojcicki, a 57-year-old woman employed as a live-in superintendent in an apartment complex managed by defendant-appellant, Finkelstein Realty Inc. (defendant), sustained serious and disfiguring chemical burns on her face, neck, arms, and upper torso when a plastic bleach-like bottle violently exploded, spewing its contents on her. At the time of the accident, Mrs. Wojcicki was attempting to remove the bottle, which was hissing and smoking, from a basement storage area on the premises.

The evidence presented at trial revealed that Mrs. Wojcicki had, on at least six occasions, unsuccessfully sought defendant’s permission to clean up the storage room in question and discard various old bottles, spray cans, paints and other hazardous debris that had accumulated over the years. The evidence further revealed that water or steam pipes in this particular storage room constantly leaked, a condition of which defendant was aware and, in fact, had attempted to repair on at least one occasion prior to the accident.

Herbert Goldstein, a chemical engineer testifying on behalf of plaintiff, explained to the jury that when water enters a *484bottle containing concentrated sulfuric acid, a chemical commonly used in drain-cleaning products such as Drano, the combination which results can lead to a violent eruption, and will, upon contact with skin, cause the type of injuries sustained by plaintiff.

In addition to the above, the evidence before the jury included testimony by plaintiff’s 39-year-old daughter, Christina Czajka, who, minutes before the accident, had observed a man open and sniff a bleach-like bottle in the storage area. After doing so, the man placed the bottle on the floor next to him and began to open water valves. When Mrs. Czajka asked what he was doing, the man replied that he was attempting to repair the steam condition.

After the accident, Mrs. Czajka found a bleach-like bottle near the site. She testified that the label had "D-something, some kind of Drano and it says concentrated sulfuric acid”.

I disagree with the majority’s finding that this record is insufficient as a matter of law to warrant the verdict reached by the jury.

The Court of Appeals has instructed that, to make out a prima facie case of negligence, a plaintiff need not demonstrate that the precise manner in which the accident occurred was foreseeable. (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316.) We are further instructed that "[bjecause questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve”. (Supra, at 315; see also, Rotz v City of New York, 143 AD2d 301, 304, where this court observed that, "Issues of negligence, foreseeability and proximate cause involve the kinds of judgmental variables which have traditionally, and soundly, been left to the finders of fact to resolve even where the facts are essentially undisputed”.)

Here, the evidence before the jury established that defendant was on notice that dangerous chemicals and other possibly hazardous materials were being kept in a storage area, and that leaking water pipes were in close proximity to these chemicals. The jury also heard that repeated requests to clear these items out of the area were made to defendant, and that defendant did not act upon them. That the accident was not, as the majority points out (at 483), caused by "fermentation of the bottle contents” does not warrant reversal, since the question of foreseeability in these circumstances was one for the triers of fact (Derdiarian v Felix Contr. Corp., supra, at *485315; see, Bahan v Green Bus Lines, 96 AD2d 876, affd 61 NY2d 922), and the evidence, when viewed in the light most favorable to the prevailing party, was sufficient, as a matter of law, to sustain the jury verdict. (Matter of Kornblum, Metals Co. v Intsel Corp., 38 NY2d 376, 379.)