Rose Cocuzza, his wife, was poisoned; and that as a result of this poisoning, she died on October 30, 1947.
The Complaint further avers that the plaintiff has been continuously employed by the defendant since November 29, 1942, up to the date of this action, except for the period from November 26, 1946, to February 1947, when plaintiff was unable to work due to illness; that during the period of the employment of plaintiff by defendant, Rose Cocuzza performed all of the normal duties of a wife to the plaintiff, including the washing, ironing and sewing of wearing apparel and the preparation of meals; that all of the said injuries are the direct result of the carelessness and negligence on the part of the defendant, as follows:
'(a) In failing to warn the plaintiff of the dangerous, poisonous and toxic nature of beryllium and its compounds.
'(b) In failing to warn the plaintiff of the possible danger of poisoning members of his family.
'(c) In failing to provide safety devices around its furnaces to prevent poisonous fumes and substances from coming into contact with employees.
'(d) In failing to provide protective clothing to be worn in the defendant's plant.
'(e) In failing to warn the plaintiff of dangers to parties coming into contact with clothing worn in the defendant's plant.
'(f) In allowing poisonous fumes and substances to escape from its furnaces to an extent sufficient to impregnate clothing of an employee, so that contact with said clothing by a non-employee, plaintiff's decedent, resulted in her poisoning.'
Defendant contends there can be no recovery here because:
'(1) There was no foreseeable, unreasonable risk of harm to decedent necessary to sustain a charge of negligence.
'(2) If negligence was established, it was the remote and not the proximate cause of the injury because of intervening acts of decedent's husband.
'(3) Even if Defendant breached a duty of due care to its employees, such breach cannot create a cause of action in favor of a person not within said class.'
For the purpose of a motion to dismiss, all the well pleaded allegations of the Complaint must be accepted as true.
As to whether the death of plaintiff's wife for the reasons indicated in the Complaint was a foreseeable risk necessary to sustain a charge of negligence on the part of defendant, or whether if negligence of defendant were established it would be the remote or proximate cause of the injury, are all questions of fact for the jury after hearing all of the testimony offered.
Certainly, at this time, the Court is in no position to determine whether or not there was a duty on the part of this defendant to any person outside of its immediate employee personnel
The sole question now before the Court is whether the plaintiff's allegations state a claim against defendant upon which relief can be granted.
I think it does
Now, this 6th day of January, 1949, the motion of defendant to dismiss the complaint is denied and the defendant is hereby ordered to file an answer to the complaint within 20 days from the date of this order.