Cicogna and Res Judicata
Saturday, June 4, 2005 | 0
ONCE THE COMP BOARD RULES THAT WORKERS INJURY WAS AN ACCIDENT, ANY CLAIM
OF INTENTIONAL TORT IS BARRED
Cicogna v. City of New York, NYLJ 5/24/05 (Supreme Court, Kings
County 2005) (PARTNOW, j)
In 1992, plaintiff worked for the New York City Department of
Transportation as a bridge repairer and riveter. For three or four
days, plaintiff worked on a welding project to repair a tank in
Brooklyn which was used for the production of asphalt cement. The
tank was approximately 12 feet in diameter, with an opening cutout at
one end to provide ingress and egress, and a hatch opening at another
point on the tank. The tank was unventilated.
On the last day of the project, Cicogna welded pipes inside the tank.
His equipment consisted of a regular welding mask, gloves, and a
welding wire. While Cicogna was welding, the torch which he was
using ignited residual tar in the tank, creating smoke which he
breathed in. He claims that in spite of advising his supervisor that
he was having difficulty breathing, his supervisor compelled him to
keep working. He went home that day feeling ill and thereafter
continued to experience difficulty in breathing. Cicogna denied
having had a breathing disorder prior to this incident.
On March 9, 1994, DOT Mobile Medical Testing Service performed a
routine physical examination of Cicogna. The doctor informed Cicogna
that he had significantly abnormal lung findings and advised him to
file for Workers' Compensation. He further advised Cicogna to follow
up with his personal physician. On March 27, 1994, Cicogna filed for
Workers' Compensation. A hearing was conducted on August 3, 1998.
On October 28, 1998, the Workers' Compensation Judge found that
Cicogna had an occupational disease and that there was a causal
relationship between the work performed by plaintiff and his injury.
The City appealed the decision and, on September 22, 1999, the
Workers' Compensation Board issued a memorandum of decision,
upholding the finding of the Workers' Compensation Judge, finding the
reports of the doctors provided substantial evidence of a reasonable
link between Cicogna's exposure to certain substances while working
as a welder and his development of lung disease. Cicogna thus
received, and continues to receive, compensation for his occupational
injuries.
On August 13, 1999, plaintiffs filed a notice of claim with the City.
Thereafter, they commenced this lawsuit wherein they alleged five
causes of action: (1) that the City, its employees and agents
intentionally deceived Cicogna concerning the safety of working
conditions at the Hamilton Avenue location in order to induce him to
work there, and that Cicogna reasonably and justifiably relied on
such representations; (2) the City, its employees and agents
intentionally interfered with Cicogna's "civil" rights to commence a
products liability action, by concealing Cicogna's alleged exposure
to certain toxic and hazardous products, precluding access to and
destroying certain products and equipment with which he worked, and
pressuring witnesses to lie about Cicogna's exposure to the
aforementioned products; (3) the City, its employees and agents
maliciously intended to cause harm to Cicogna; (4) the City
was "negligent, grossly negligent, and reckless" in requiring Cicogna
to work under such dangerous conditions and circumstances; and (5)
defendant's conduct resulted in damages to Patricia Cicogna for loss
of consortium of her husband.
The City moved for summary judgment. In support of its contention
that the first, third and fourth causes of action must be dismissed
because plaintiffs have failed to file a timely notice of claim, the
City asserted that Cicogna's claims arose, at the earliest, in August
1992, when he went home with an injury, and at the very latest in
March 1994, when he was diagnosed with respiratory injuries upon his
medical examination by DOT. Since the notice of claim was filed more
than five years after the latest date upon which his claim arguably
could have arisen, the City argued that the notice of claim was
untimely. The statute of limitations, which is one year and 90 days,
had also long expired.
In support of its further contention that workers' compensation is
the exclusive remedy for the subject causes of action, the City
relies on the language contained in Section 11 of the Workers'
Compensation Law, which provides, in relevant part, that "the
liability of an employer [prescribed by Section 10 of the Workers'
Compensation Law] shall be exclusive and in place of any liability
whatsoever, to such employee . . . or anyone otherwise entitled to
recover damages at common law or otherwise on account of such injury
or death." Cicogna, having already availed himself of the remedy of
workers' compensation, is not entitled to a double recovery by way of
an action at common-law.
Plaintiffs contended that the present claim, as it relates to
Cicogna's brain injury as opposed to his lung injury, is not barred
by workers' compensation or principles of res judicata, because
Cicogna never received any compensation for the brain injury, nor was
it ever placed in issue in any prior forum. In addition, they
asserted that, as a factual matter, both the brain injury and the
lung injury fall within the intentional tort exception of the
workers' compensation law because such injuries were intentionally
caused by plaintiff's supervisor.
Also, plaintiff contended that he should be excused for filing a late
notice of claim because when his attorney investigated his claim by
speaking with plaintiff's supervisor, the supervisor denied all the
basic factual allegations and thus delayed the filing of the claim,
and therefore the City should be equitably estopped from asserting
the statute of limitations defense.
The Court held, first, that the doctrine of equitable estoppel does
not apply here. "Although a municipality may be estopped from
asserting that a claim was untimely when its improper conduct induced
reliance by a plaintiff who changed his or her position to his or her
detriment, the doctrine of estoppel will be applied against
governmental agencies only in exceptional cases, and only where
plaintiff demonstrates fraud, misrepresentation, deception, or
similar affirmative misconduct, along with reasonable reliance
thereon."
In this case, "plaintiffs merely allege, without offering a shred of
non-hearsay evidentiary support, that their attorney was misled by
the misrepresentations of Cicogna's former supervisor and co-workers.
Even if the court were to accept plaintiffs' allegations as true,
plaintiffs fail to demonstrate that they reasonably relied on such
misrepresentations. When viewed in the context of the operative legal
standard, plaintiffs' unsupported allegation that 'plaintiffs were
induced by the lies of the defendant not to start a claim or lawsuit
against the City of New York . . . during the time . . . such claims
or lawsuits were still within the applicable statute of limitations'
is insufficient to justify application of the doctrine."
"The record establishes that Cicogna's claims arose no later than
March 1994, when he was examined by DOT's Medical Testing Service and
diagnosed with respiratory injuries. Under such circumstances,
service of the notice of claim and the filing of the summons and
complaint were clearly untimely, since the statute of limitations
expired, at the very latest, in June 1995. Further, this court has no
authority to extend the time to file a notice of claim once the
statute of limitations expires."
"Moreover," held the Court, "plaintiffs' claims are barred by the
exclusivity provisions contained in Section 11 of the Workers'
Compensation Law. Plaintiffs' attempt to argue that Cicogna never
sought recovery for brain or neurological injuries and therefore did
not waive his right to assert an action for common-law tort, is
unavailing. It is well-settled that 'primary jurisdiction with
respect to determinations as to the applicability of the Workers'
Compensation Law has been vested in the Workers' Compensation Board
and . . . it is therefore inappropriate for the courts to express
views with respect thereto pending determination by the board.'" The
court noted that plaintiff's brain disfunction and cognitive deficits
were diagnosed in 1996, during the pendency of his workers'
compensation proceeding.
"Also unavailing is plaintiffs' argument that defendant committed an
intentional tort, thus constituting an exception to the exclusivity
of the workers' compensation system. Although it is true that the
exclusivity provisions of the Workers' Compensation Law do not apply
where an injury is sustained to an employee due to an intentional
tort perpetrated by the employer or at the employer's direction, in
order to constitute an intentional tort, the conduct must be engaged
in with the desire to bring about the consequences of the act. A mere
knowledge and appreciation of a risk is not the same as the intent to
cause injury." Plaintiff's testimony, purporting to show that his
supervisor forced him to return to a hazardous worksite, in spite of
the fact that he was clearly in distress, by observing that 'there's
plenty of guys in the union hall that will take this job,' "fails to
demonstrate such intent to cause injury."
"Moreover," held the Court, "the intentional tort exception does not
apply when, as here, the Workers' Compensaton Board had made a final
determination regarding coverage, and the employee has accepted and
retained benefits under the statute. Once the Workers' Compensation
board has determined that the injury was 'accidental' within the
meaning of the statute, the doctrine of res judicata applies and an
employee is barred from bringing any common law claims against the
employer, including those based on the theory of intentional tort."
The Complaint was dismissed.
by NY attorney Lawrence Rogak.
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