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June 11, 2019

On June 11, 2019, New York’s highest court affirmed that manufacturers of coke ovens have a duty to warn about the latent dangers of their products.  Coke ovens are vast, industrial ovens that are used to transform coal into coke, a solid fuel used in steel manufacture.  Until the imposition of engineering controls and the mandatory use of respiratory protection in the late 1970's, the ovens, when used as intended, exposed the workers operating them to dangerous cancer-causing emissions.

Lipsitz & Ponterio represents the estate of Donald Terwilliger, who spent much of his career as a coke oven worker at Bethlehem Steel in Lackawanna, New York.  Beginning in 1966, Mr. Terwilliger spent most of his workday exposed to carcinogenic emissions released by the coke ovens at his workplace.  Despite knowing that its ovens posed a deadly hazard, the ovens’ manufacturer never warned workers like Mr. Terwilliger about the dangers they posed. When Mr. Terwilliger’s estate sued the coke oven’s manufacturer, the defendant argued that, even if it knew that using its ovens as intended could kill the users, the manufacturer did not have any duty to warn users, because the coke ovens were so large that they should not be considered products.  The oven is too big to be a product, the defendant insisted, and if it is not a product, then the company that made it is entitled to sell it in a dangerous condition.

After a multi-year legal battle, on June 11, 2019, the Court of Appeals rejected this semantic argument and confirmed the longstanding New York rule that a manufacturer has a duty to warn about the latent dangers of the machinery it sells – even if its machines are very large, or are constructed into a larger building.  This decision is a victory for common sense and for the rights of New Yorkers injured by industrial negligence.

John Lipsitz, Dennis Harlow, and Mat Morton from our office were significantly involved with this appeal. 

If you would like to read more, the link to the Terwilliger decision is: 

https://www.nycourts.gov/ctapps/Decisions/2019/Jun19/36opn19-Decision.pdf.