|"The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."|
Docket No. C-3904-75
DONNA M. SHIMP,
NEW JERSEY BELL TELEPHONE COMPANY, Defendant.
LAND & FINIFTER
The matter having been opened to the Court by Stuart B. Finifter, Esquire, of Stuart & Finifter, attorneys for the plaintiff in the presence of Charles Sweeney, Esquire, attorney for the defendant;
And the Court having read and considered the Verified Complaint, Affidavits, Briefs, and heard oral arguments submitted herein;
And the parties stipulating that the said pleadings and arguments herein shall be considered in lieu of oral testimony, and the right of cross-examination of the parties and witnesses having been waived by the parties,
And the Court having rendered a written Opinion herein, which Opinion has been approved for publication in the Official Reports of this State;
IT IS ON THIS 25th day of March, 1977,
ORDERED AND ADJUDGED:
1. The defendant New Jersey Bell Telephone Company provide safe working conditions for plaintiff, by restricting the smoking of employees to the non-work area presently used as a lunch room.
2. That no smoking shall be permitted in the offices or adjacent customer service area of plaintiff's place of employment.
3. That defendant New Jersey Bell Telephone Company provide access to wash room facilities for the plaintiff through a separate entrance other than through the Manager's office.
4. That defendant New Jersey Bell Telephone Company inform any managerial employees that he or she is directed and that they must comply with the Orders of this Court.
5. That the Orders and Judgements rendered in this matter be enforced by the defendant New Jersey Bell Telephone Company without any harassment of the plaintiff of any type or description, including but not limited to work assignments and duties, and conditions of employment.
/s/ Philip A. Gruccio
Docket No. C-3904-75
DONNA M. SHIMP,
NEW JERSEY BELL TELEPHONE COMPANY, Defendant.
Chancery Division--Atlantic County
BRIEF IN SUPPORT OF PLAINTIFF'S
the complaint, holding that there was no violation of the National Labor Relations Act; this dismissal was upheld on appeal to their General Counsel.
1. Employers in the State of New Jersey are under a duty, imposed by the Common Law of New Jersey, to provide a reasonably safe and healthful place for employees to work, which includes the provision of adequate general ventilation.
Under the contract of employment it becomes the master's duty to use reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools and implements with which he may work, to inspect and repair the apparatus at reasonable intervals and with ordinary prudence, and to select and employ competent [e.g., sane, non-dangerous] workmen.
It is one of the duties of an employer to exercise reasonable care that the place in which he sets his servant [employees] to work, and the system or method adopted by the employer for the doing of the work, shall be reasonably safe for the servant and free from latent dangers known to the master or discernible by an ordinarily prudent master [employer] in the circumstances. Western Union Telegraph Co. v. McMullen, 29 Vroom 155.
It is suggested that the duty of a master [an employer] with respect to care as to thetools and appliances furnished for his servant's [employee's] work is limited to such as are in fact supplied by the master. But this has no appliancy [application] to the failure of the present defendant to supply gloves, boards or a platform. These articles, if furnished, would have been not tools and appliances for the work that the plaintiffs were doing but rather safeguards against the dangers that arose out of the work. In the absence of such dangers the plaintiffs could perform the work at which they were set just as well without gloves, boards, or platform as with them. See Belleville Stone Co. v. Mooney, 32 Vroom 254. It was not the exigencies of the work but the latent danger that inhered in the work and of which the jury have found
the plaintiffs were ignorant, that necessitated the use of gloves, boards or a platform.
. . . Proof of an industry custom is not dispositive on the question of duty. The standard of conduct is reasonable care, that care which a prudent man would take in the circumstances. The customs of an industry are not conclusive on the issue of the proper extent of care; they are at most evidential of the standard. (Citations omitted.)
Even an entire industry by adopting such careless methods to save time, effort or money, cannot be permitted to set its own uncontrolled standards . . . and if the only test is to be what has been done before, no industry or group will ever have any great incentive to make progress in the direction of safety. . . . The much better view therefore is that of the great majority of the cases, that every custom is not conclusive merely because it is a custom, and that it must meet the challenge of 'learned reason,' and be given only the evidentiary weight which the situation deserves. It follows that where common knowledge and ordinary judgment will recognize unreasonable danger, what everyone does may be found to be negligent; and that there will be extreme cases where it is so clearly negligent in itself that it may even be excluded from evidence. Prosser, Torts Sec. 33, 170 (3d Ed. '64 ).
(3-5) "Duty is not an absolute conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably forseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549, 133 A.2d 12 (1957). In the field of negligence, duty signifies conformance "to the legal standard of reasonable conduct in
the light of the apparent risk"; the essential question is whether "the plaintiff's [employee] interests [e.g., safety] are entitled to legal protection against the defendant's [employer's] conduct." Prosser on Torts (2d Ed.), section 36. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct. (6) "Duty" is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows; and accordingly the standard of conduct is care commensurate with the reasonably forseeable danger, such as would be reasonable in the light of the recognizable risk, for negligence is essentially "a matter of risk * * * that is to say of recognizable danger of injury." Prosser, Ibid, section 30.
290. What Actor [Person] is Required to Know.
This section is explained in comment e. as follows:
(e) It is stated in 283 that unless the actor is a child, the standard to which he must conform to avoid being negligent is that of a reasonable man under the circumstances. In determining whether the actor's conduct is negligent, his personal inability to conform to the standard is immaterial.
things, to know the poisonous qualities of many drugs, chemicals, and gases and the explosive or inflammable qualities of many chemical compounds and the intoxicating quality of certain liquids. So too, the actor as a reasonable man is required to know the ordinary operation of natural forces in the locality in which he lives which are likely to be affected by his conduct. (Emphasis added.)
495. Knowledge Which Master [Employer] is Required to Have
c. Scientific knowledge. The knowledge which is required of an employer includes a knowledge of generally known scientific discoveries and inventions applicable to conditions of safety in his business. He is required to inform himself of current advances and of the progress in industries of the same nature as his own. He is required not only to know of the operation of natural forces, but of the tendencies which are shown by men under conditions similar to those which exist in his employment. Thus, he must not only know something concerning the breaking strength of materials which he uses, but he must also realize the effect of the work which he requires upon the human instrumentalities who perform it. He is also under a duty to realize the limits of knowledge of those whom he employs, so that he can guard them against dangers which he is required to know, but of which he should know they may be unaware.
(7) . . . If the trial court finds the individual plaintiffs' constitutional rights have been infringed upon, it can exercise its vast equitable powers and grant the relief which the circumstances dictate. As was stated in Westinghouse Electric Corp. v. United Electrical, Radio and Machine Workers of America, Local No. 410, 139 NJ. Eq. 97, 108 (E. & A. 1946):
The broad extent of equity's power to remedy a wrong was aptly described by Justice Heher in Sears, Roebuck & Co. v. Camp, 124 N.J. Eq. 403, 411-412 (E. & A. 1938):
Milk Drivers and Dairy Employees Local No. 680, 30 N.J. 173 (1959) said, at p. 182:
person for injunctive relief where the aggrieved person did not seek in any way to use the administrative procedure establishcd under the New Jersey law.
"shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation or determination thereof than is provided in this article and in acceptance of all the provisions of this article, and shall bind the employee himself, and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." (emphasis added)
1. An atmosphere contaminated with tobacco smoke can contribute to the discomfort of many individuals.
ceed the occupational Threshold Limit Value [legal limit] for a normal work period presently in effect for the United States as a whole. The presence of such levels indicates that the effect of exposure to carbon monoxide may on occasion, depending upon the length of exposure, be sufficient to be harmful to the health of an exposed person. This would be particularly significant for people who are already suffering from chronic bronchopulmonary disease and coronary heart disease.
NEW JERSEY BELL TELEPHONE COMPANY, Defendant.
CHARLES A. SWEENEY, ESQUIRE,
to mold it to fit the situation. But until we have had experience we do not know whether it will fill the bill.
I think that is basically what the issue is all about.
cause of that it is almost certain that the transfer will not be approved, in effect again affecting her conditions of employment in taking her out of the normal transfer process because of seniority.
because of this and this and this [smoke-caused absences], why, this is what we will do to you.
I think when you get to that, that the State Legislature and the Congress have both enacted legislation and have set up organizations [such as OSHA] to [set minimum] standards of working conditions.
If Mrs. Shimp feels she has been to OSHA and is unsatisfied with the results, the statute spells out the course of appeal, and it belongs in the Federal District Court, not here.
and the telephone company is not designed to do that
But that should be done in another location.
particularly those who are allergic, those who may have heart disease or have other diseases which the passive inhalation of smoke makes injurious to their health.
ment that the work environment should be free of tobacco smoke, and so forth.
making any final determination whatsoever), is deleteriously affecting the health of this person.
Dated: April 8, 1976
The full text of Judge' Gruccio's written TTS-ban Opinion above referenced is both online and in paper text at any good law library. The citation is Shimp v New Jersey Bell Telephone Co, 145 N J Super 516, 531; 368 A2d 408, 416 (1976). Key words include:
"Cigarettes may not be smoked around the telephone equipment . . . extremely sensitive and can be damaged by the smoke. Human beings are also very sensitive and can be damaged by cigarette smoke. . . . A company which has demonstrated such concern for its mechanical components should have at least as much concern for its human beings. Plaintiff asks nothing more than to breathe the air in its clear and natural state."
Ross v Butler, 19 NJ Eq 294; 97 Am Dec 654 (1868) (banning nuisance from burning pine wood affecting adjoining land owner by smoky cinders and odors as not even a short nuisance is allowed when foreseeably recurring, i.e., applying the concept of banning "ultrahazardous activity" spreading beyond the perpetrator's person or property)
MacDonald v Standard Oil Co, 69 NJL 445 (1903) (employer's "duty to use reasonable care to provide a proper and safe place to work . . . select and employ competent workmen")
Burns v Del & Atl Telegraph & Telephone Co, 70 NJL 745 (1904) (workplaces "shall be reasonably safe for the [employees] and free from latent dangers known to the [employer] or discernible by an ordinarily prudent [employer] in the circumstances)
Wallenhelder v Rader, 49 NJ 1, 7 ("Proof of an industry standard is not dispositive on the question of duty. The standard of conduct is reasonable care. . . . The customs of an industry are not conclusive on the issue of the proper standard of care.")
Dean Prosser, Torts § 33, 170 (3rd ed, 1964) ("if the only test is to be what has been done, no industry or group will ever have any great incentive to make progress in the direction of safety. . . it must meet the challenge of 'learned reason'")
Protecting Employee Rights by Injunction: Independent Dairy Workers v Milk Drivers Local No. 680, 23 NJ 85; 30 NJ 173 (1959); Cooper v Nutley Son Printing Co, 36 NJ 189 (1961); and Johnson v Christ Hospital, 84 NJ Super 541 (1964) aff'd 45 NJ 108 (1965)
The Precedents On Which Those Precedents Relied
|Shimp's 1976 brief cited precedents only back to about 1868, when New Jersey began having pure rights cases. Those 19th century cases cited even older precedents and principles going back millenia. These precedents show the ancient common law right to "fresh and pure air" and/or banning "ultrahazardous activity."
In opposing employees seeking enforcement of pure air rights, what employers in essence do is pretend that the nonsmoking employee assumes the risk posed by smokers' deviant behavior of spewing toxic chemicals. But in law, the claim of "assumed the risk" is invalid. Here is why:
“To hold that he [the nonsmoker] did assume the risk would be equivalent to a repeal of the [safety] statute [and anti-nuisance principles], since it would be a continuing invitation to the company to forbear compliance with its provisions. The [safety] statute was passed under the police power of the state [federal government] for the purpose of protecting those who are unable to protect themselves, occupying as they necessarily do a position much inferior in financial security to that of their employers; the physical necessity of themselves and their families making it essential that they should have work in order to secure the means of sustenance. It would defeat this beneficent purpose if it should be admitted as a sound principle that a failure of the employer to obey the statute could be [legally] condoned by the employe[e]. Such a conclusion would place the employer in the position of power which only the Legislature [Congress] should occupy, since it would enable him [the employer] to either destroy or maintain the policies of the state [federal government] according to his own will and purpose.”—American Zinc Co v Graham, 132 Tenn 586, 589; 179 SW 138, 139-140 (1915), in turn cited by Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 California Law Rev (#3) 702 at 712 n 48 (May 1976).
And see Koenig v Patrick Constr Corp, 298 NY 313, 318-319; 63 NE2d 133, 135 (1948): “Workmen . . . are scarcely in a position to protect themselves from accident [e.g., injury caused by smokers]. They usually have no choice but to work with the equipment at hand [coworkers whether negligently hired or otherwise] though danger looms large [extraordinary]. The legislature [Congress] recognized this and to guard against the known hazards of the occupation [non-processing] required the employer to safeguard the workers from injury [wrote the entire safety law] . . . If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment [be hurt by negligently hired coworkers], the beneficial purpose of the [safety] statute might well be frustrated and nullified.”—Cited by Blumrosen, “Injunctions,” 64 Calif Law Rev 702, supra, at 711-712 n 47 (May 1976)
A book on which Donna Shimp had relied, inspiring her to seek enforcement of the safety law and rules despite OSHA refusal of enforcement, is: Susan M. Daum, M.D., and Jeanne M. Stillman, Ph.D., Work is Dangerous to Your Health: A Handbook of Health Hazards in The Workplace and What You Can Do About Them (New York, Vintage Books, 1973).
The Shimp case against TTS was widely publicized, including in favorable and unfavorable articles (some editors misrepresented her asking for a safe job site protecting all workers on this subject, as per the law, as being "anti-smoker" instead of "pro-safety for all"):
When a citizen is attempting to enforce the laws, as herein by Shimp and others, such private citizen is doing so "not for himself alone but also [for others] as a 'private attorney general' vindicating a policy that Congress considered of the highest priority." Newman v Piggie Park Enterprises, 390 US 400; 88 S Ct 964, 966; 19 L Ed 2d 1263, 1265 (1969); Oatis v Crown Zellerbach Corp, 398 F2d 496, 499 (CA 5, 1968); and Jenkins v United Gas Corp, 400 F2d 28, 33 n 10 (CA 5, 1968).
Example of Anti-Nonsmoker Hostility by Chrysler
Despite Knowing the Law and Precedents
Data From 1925
"Are You Missing $omething?,"
26 Smoke Signals 4 (Oct 1980)
consolidating in one narrative, data from a multiplicity of sources,
refuting the then notion that cigarettes are a cost plus to society
"Smoking as hazardous conduct,"
86 N Y St J Med 493 (September 1986)
"[Indoor Air Quality] IAQ Already Regulated,"
3 Indoor Air Rev 3 (April 1993)
"Alternative Models for Controlling Smoking Among Adolescents,"
87 Am J Pub Health 869-870 (May 1997)
by doing for them as for all other people:
a law providing that only safe products
be manufactured, given away, and sold
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