Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Tyler v. Dow Chemical Co.
Citations: 252 A.D.2d 31; 683 N.Y.S.2d 619; 1998 N.Y. App. Div. LEXIS 14115
Court: Appellate Division of the Supreme Court of the State of New York; December 29, 1998; New York; State Appellate Court
Plaintiff Mearion C. Tyler engaged Terminix International, Inc. and Terminix International Company, L.P. to treat his home for termites in September 1994, using the insecticide Dursban TC. Tyler informed Terminix of his wife and infant daughter's asthma and respiratory issues, expressing concern about potential harm from the treatment. Terminix assured him on two occasions that the treatment would not adversely affect their health and that they could return home five hours post-application. However, after approximately ten hours, Tyler’s wife and daughter experienced severe respiratory reactions, diagnosed as related to Dursban exposure, and Tyler also reported health effects from the insecticide. The plaintiffs initiated legal action against Terminix, citing breach of express warranty, negligent application, fraud, and misrepresentation. Terminix sought summary judgment to dismiss the failure to warn claims under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which the Supreme Court denied, ruling that FIFRA preempted only claims related to inadequate labeling or packaging and did not apply to pesticide applicators like Terminix. Terminix appealed, arguing that the court erred by not recognizing FIFRA's preemption regarding the plaintiffs' claims based on their status as pesticide applicators. While acknowledging that FIFRA does not preclude claims for breach of express warranty or misapplication, Terminix contended that plaintiffs' claims were fundamentally about failure to warn, masked as other claims. The court, while noting that inaccurately described claims based on failure to warn are preempted, found that the plaintiffs had sufficiently presented a viable breach of express warranty claim. Plaintiffs assert that Terminix made explicit assurances that no adverse health effects would result from their service after being informed of the plaintiffs' medical conditions, distinguishing this case from others where the claim is based solely on a lack of warnings on labels. The claim is rooted in allegations of breach of express warranty rather than additional labeling requirements, allowing it to survive federal preemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Claims related to improper application of the pesticide Dursban are also not subject to FIFRA preemption, as supported by expert testimony indicating violations of labeling requirements. However, allegations regarding the failure to provide different warnings than those on the label are preempted by FIFRA. Assertions about Terminix's obligation to warn regarding potential adverse effects are similarly encompassed by this preemption. Claims related to failure in research, training, and testing are deemed conclusory and dismissed. The court modified the prior order to grant summary judgment in favor of Terminix regarding the failure to warn and failure to research, train, and test claims, while affirming the modified order overall.