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`NYSCEF DOC. NO. 32
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
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`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
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` Plaintiffs,
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` -against-
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`84 LUMBER COMPANY, et al;
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` Defendants.
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`Index No. 814633/2023
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`EATON CORPORATION’S
`VERIFIED ANSWER WITH
`CROSS-CLAIMS
`
`Defendant Eaton Corporation (“Eaton”), incorrectly sued herein as “Eaton Corporation,
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`Individually and now Known as Eaton Electrical, Inc and as Successor to The Vickers Pump
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`Company and Cutler-Hammer, Inc and Waterbury Pump,” by its attorneys Darger Errante Yavitz
`
`& Blau LLP, for its Verified Answer with Cross-Claims (“Answer”) to the Verified Complaint
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`(“Complaint”), filed by Plaintiffs Troy Shane Smith and Allyson Jane Smith (“Plaintiff” or
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`collectively “Plaintiffs”), answer as follows:
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`THE PARTIES
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`1.
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`Eaton denies knowledge and information sufficient to form a belief with respect
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`to the truth of all allegations contained in Paragraphs 1 through 3 of the Complaint.
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`2.
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`Paragraph 4 of Plaintiff’s Complaint contains no allegations to which a response
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`is required; to the extent a response is required, Eaton denies the allegations as they pertain to
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`Eaton and denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations set forth and refers all questions of law to the Court.
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`3.
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`Eaton denies the allegations contained in Paragraph 5 of the Complaint as they
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`pertain to Eaton, except admits that Eaton has conducted business in the State of New York, and
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`
`
`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
`
` Plaintiffs,
`
` -against-
`
`
`84 LUMBER COMPANY, et al;
`
` Defendants.
`
`
`
`
`
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`Index No. 814633/2023
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`EATON CORPORATION’S
`VERIFIED ANSWER WITH
`CROSS-CLAIMS
`
`Defendant Eaton Corporation (“Eaton”), incorrectly sued herein as “Eaton Corporation,
`
`Individually and now Known as Eaton Electrical, Inc and as Successor to The Vickers Pump
`
`Company and Cutler-Hammer, Inc and Waterbury Pump,” by its attorneys Darger Errante Yavitz
`
`& Blau LLP, for its Verified Answer with Cross-Claims (“Answer”) to the Verified Complaint
`
`(“Complaint”), filed by Plaintiffs Troy Shane Smith and Allyson Jane Smith (“Plaintiff” or
`
`collectively “Plaintiffs”), answer as follows:
`
`THE PARTIES
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`1.
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`Eaton denies knowledge and information sufficient to form a belief with respect
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`to the truth of all allegations contained in Paragraphs 1 through 3 of the Complaint.
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`2.
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`Paragraph 4 of Plaintiff’s Complaint contains no allegations to which a response
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`is required; to the extent a response is required, Eaton denies the allegations as they pertain to
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`Eaton and denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations set forth and refers all questions of law to the Court.
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`3.
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`Eaton denies the allegations contained in Paragraph 5 of the Complaint as they
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`pertain to Eaton, except admits that Eaton has conducted business in the State of New York, and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations as
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`they pertain to other parties.
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`4.
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`Eaton denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations of Paragraphs 6 through 26 as they pertain to other parties.
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`5.
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`Except to admit that Eaton has conducted business in the State of New York,
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`Eaton denies the allegations of Paragraph 27 of the Complaint.
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`6.
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`Eaton denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations of Paragraphs 28 through 61 as they pertain to other parties.
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`7.
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`Except to admit that Eaton has conducted business in the State of New York,
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`Eaton denies the allegations of Paragraph 62 of the Complaint as they pertain to Eaton, and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations as
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`they pertain to other parties.
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`8.
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`Eaton denies the allegations contained in Paragraphs 63 through 69 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties.
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`AS TO THE FIRST CAUSE OF ACTION
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`9.
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`In response to Paragraph 70 contained in Plaintiff’s Complaint, Eaton repeats and
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`reiterates each and every response to the prior allegations of this complaint as if alleged more
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`fully below:
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`10.
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`Eaton denies the allegations contained in Paragraphs 71 through 78 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties.
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`AS TO THE SECOND CAUSE OF ACTION
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`11.
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`In response to Paragraph 79 contained in Plaintiff’s Complaint, Eaton repeats and
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`reiterates each and every response to the prior allegations of this complaint as if alleged more
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`fully below:
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`12.
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`Eaton denies the allegations contained in Paragraphs 80 through 83 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties.
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`AS TO THE THIRD CAUSE OF ACTION
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`13.
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`In response to Paragraph 84 contained in Plaintiff’s Complaint, Eaton repeats and
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`reiterates each and every response to the prior allegations of this complaint as if alleged more
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`fully below:
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`14.
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`Eaton denies the allegations contained in Paragraphs 85 through 93 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties.
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`AS TO THE FOURTH CAUSE OF ACTION
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`15.
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`In response to Paragraph 94 contained in Plaintiff’s Complaint, Eaton repeats and
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`reiterates each and every response to the prior allegations of this complaint as if alleged more
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`fully below:
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`16.
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`Eaton denies the allegations contained in Paragraphs 95 through 112 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties and refers all questions of
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`law to the Court.
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`AS TO THE FIFTH CAUSE OF ACTION
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`17.
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`In response to Paragraph 113 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`18.
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`Paragraphs 114 through 120 of Plaintiff’s Complaint contain no allegations to
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`which a response is required; to the extent a response is required, Eaton denies the allegations as
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`they pertain to Eaton and denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth and refers all questions of law to the Court.
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`AS TO THE SIXTH CAUSE OF ACTION
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`19.
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`In response to Paragraph 121 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`20.
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`Eaton denies the allegations contained in Paragraphs 122 through 136 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties.
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`AS TO THE SEVENTH CAUSE OF ACTION
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`21.
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`In response to Paragraph 137 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`22.
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`Paragraph 138 of Plaintiff’s Complaint contains no allegations to which a
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`response is required; to the extent a response is required, Eaton denies the allegations as they
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`pertain to Eaton and denies knowledge or information sufficient to form a belief as to the truth of
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`the allegations as they pertain to other parties and refers all questions of law to the Court.
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`23.
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`Eaton denies the allegations contained in Paragraphs 139 through 150 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties and refers all questions of
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`law to the Court.
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`AS TO THE EIGHTH CAUSE OF ACTION
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`24.
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`In response to Paragraph 151 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`25.
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`Eaton denies the allegations contained in Paragraphs 152 through 166 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties and refers all questions of
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`law to the Court.
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`AS TO THE NINTH CAUSE OF ACTION
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`26.
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`In response to Paragraph 167 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`27.
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`Eaton denies the allegations contained in Paragraphs 168 through 179 of the
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`Complaint as they pertain to Eaton, and denies knowledge or information sufficient to form a
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`belief as to the truth of the allegations as they pertain to other parties and refers all questions of
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`law to the Court.
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`AS TO THE TENTH CAUSE OF ACTION
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`28.
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`In response to Paragraph 180 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`29.
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`Eaton denies the allegations contained in Paragraph 181 of the Complaint as they
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`pertain to Eaton, and denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations as they pertain to other parties.
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`AS TO THE ELEVENTH CAUSE OF ACTION
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`30.
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`In response to Paragraph 182 contained in Plaintiff’s Complaint, Eaton repeats
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`and reiterates each and every response to the prior allegations of this complaint as if alleged
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`more fully below:
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`31.
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`Eaton denies knowledge and information sufficient to form a belief with respect
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`to the truth of all allegations contained in Paragraph 183 of the Complaint.
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`32.
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`Eaton denies the allegations contained in Paragraph 184 of the Complaint as they
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`pertain to Eaton, and denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations as they pertain to other parties.
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`AS AND FOR A
`FIRST AFFIRMATIVE DEFENSE
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`33.
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`The Court lacks jurisdiction over the subject matter of this action.
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`AS AND FOR A
`SECOND AFFIRMATIVE DEFENSE
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`34.
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`This Court lacks personal jurisdiction over Eaton.
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`AS AND FOR A
`THIRD AFFIRMATIVE DEFENSE
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`35.
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`All claims are time-barred by the applicable Statute of Limitations.
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`AS AND FOR A
`FOURTH AFFIRMATIVE DEFENSE
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`36.
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`All claims are barred by the applicable statute of repose.
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`AS AND FOR A
`FIFTH AFFIRMATIVE DEFENSE
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`37.
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`All causes of action have not been maintained in a timely fashion and Plaintiff has
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`neglected the same and should be barred by the doctrine of laches.
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`AS AND FOR A
`SIXTH AFFIRMATIVE DEFENSE
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`38.
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`All claims should be dismissed based upon inconvenient forum.
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`AS AND FOR A
`SEVENTH AFFIRMATIVE DEFENSE
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`39.
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`Plaintiff lacks the legal capacity, standing, and authority to bring this action.
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`AS AND FOR AN
`EIGHTH AFFIRMATIVE DEFENSE
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`40.
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`All claims should be dismissed based upon waiver.
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`AS AND FOR A
`NINTH AFFIRMATIVE DEFENSE
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`41.
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`All claims should be dismissed based upon the doctrines of accord and
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`satisfaction, judicial estoppel, payment and release, collateral estoppel and/or res judicata.
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`AS AND FOR A
`TENTH AFFIRMATIVE DEFENSE
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`42.
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`All claims should be dismissed based upon documentary evidence.
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`AS AND FOR AN
`ELEVENTH AFFIRMATIVE DEFENSE
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`43.
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`All claims should be dismissed based upon Plaintiff’s infancy or other disability.
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`AS AND FOR A
`TWELFTH AFFIRMATIVE DEFENSE
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`44.
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`Any damages sustained by Plaintiff were the result of an intervening and/or
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`superseding cause not of Eaton’s doing.
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`AS AND FOR A
`THIRTEENTH AFFIRMATIVE DEFENSE
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`45.
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`The Complaint and each and every allegation considered separately fail to state
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`any cause of action against Eaton upon which relief can be granted.
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`AS AND FOR A
`FOURTEENTH AFFIRMATIVE DEFENSE
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`46.
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`This action is barred by Plaintiff’s failure to join necessary and/or indispensable
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`parties without which this action should not proceed and should be dismissed.
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`AS AND FOR A
`FIFTEENTH AFFIRMATIVE DEFENSE
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`47.
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`Venue is improper.
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`AS AND FOR A
`SIXTEENTH AFFIRMATIVE DEFENSE
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`48.
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`There is a lack or insufficiency of service of process upon Eaton.
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`AS AND FOR A
`SEVENTEENTH AFFIRMATIVE DEFENSE
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`49.
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`Plaintiff’s claims are or may be barred or otherwise limited or affected by the
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`application of provisions of the law or statutes of states or jurisdictions other than the State of
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`New York where Plaintiff’s alleged exposure may have occurred.
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`AS AND FOR AN
`EIGHTEENTH AFFIRMATIVE DEFENSE
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`50.
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`Plaintiff’s claims are or may be barred or otherwise limited by reason of accord
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`and satisfaction.
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`AS AND FOR A
`NINETEENTH AFFIRMATIVE DEFENSE
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`51.
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`In the event that Plaintiff was employed by Eaton, Plaintiff’s sole and exclusive
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`remedy is under the Workers’ Compensation Law of the State of New York, the
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`Longshoremen’s and Harbor Workers’ Compensation Act, and the workers’ compensation laws
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`of any other state, jurisdiction, and/or venue where Plaintiff may have worked.
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`AS AND FOR A
`TWENTIETH AFFIRMATIVE DEFENSE
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`52.
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`Plaintiff’s loss of consortium claim is barred as a matter of law to the extent that
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`the alleged exposure to Eaton’s product, material, or equipment predates the date of Plaintiff’s
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`marriage.
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`AS AND FOR A
`TWENTY-FIRST AFFIRMATIVE DEFENSE
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`53.
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`The alleged injuries were or may have been due to exposure to products,
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`materials, or equipment of manufacturers, distributors, or suppliers not named as defendants in
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`this action.
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`AS AND FOR A
`TWENTY-SECOND AFFIRMATIVE DEFENSE
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`54.
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`Plaintiff’s alleged injuries were not caused by exposure to any alleged Eaton
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`product, material, or equipment.
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`AS AND FOR A
`TWENTY-THIRD AFFIRMATIVE DEFENSE
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`55.
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`Eaton denies any successor liability for any product, material or equipment from
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`which Plaintiff alleges injuries.
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`AS AND FOR A
`TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`56.
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`To the extent that Plaintiff worked with or around any product, material, or
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`equipment manufactured, sold, or distributed by Eaton, said product, material, or equipment did
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`not contain asbestos.
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`AS AND FOR A
`TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`57.
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`Eaton did not specify, recommend, direct, or require the use of asbestos or
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`asbestos containing products, materials, or equipment.
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`AS AND FOR A
`TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`58.
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`Eaton denies that Plaintiff had any exposure to any asbestos or asbestos-
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`containing product, material, or equipment mined, processed, manufactured, supplied,
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`developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in
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`the stream of commerce by Eaton and, more particularly, denies upon information and belief that
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`Eaton mined, processed, manufactured, supplied, developed, tested, fashioned, packaged,
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`distributed, delivered, sold, and/or otherwise placed in the stream of commerce any asbestos or
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`asbestos-containing product, material, or equipment at the times and upon the dates alleged by
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`Plaintiff.
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`AS AND FOR A
`TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`59.
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`Eaton specifically denies that the asbestos or asbestos-containing products,
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`material, or equipment to which Plaintiff allege exposure are products within the meaning and
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`scope of the Restatement of Torts § 402A, and as such, the Complaint fails to state a cause of
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`action in strict liability.
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`AS AND FOR A
`TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`60.
`
`In the event Plaintiff should prove exposure to any Eaton product, material, or
`
`equipment, such exposure was de minimis and not sufficient to establish by a reasonable degree
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`of probability that any Eaton product, material, or equipment caused any alleged injury.
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`AS AND FOR A
`TWENTY-NINTH AFFIRMATIVE DEFENSE
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`61.
`
`In the event Plaintiff should prove exposure at any location for which Eaton is
`
`claimed to be legally liable, such exposure was de minimis and not sufficient to establish by a
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`reasonable degree of probability that any Eaton product, material, or equipment caused any
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`alleged injury.
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`AS AND FOR A
`THIRTIETH AFFIRMATIVE DEFENSE
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`62.
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`Contact with or use by Plaintiff of any asbestos or asbestos-containing products,
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`materials, or equipment supplied, sold, or manufactured by Eaton was not a substantial
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`contributing cause of any alleged injury.
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`AS AND FOR A
`THIRTY-FIRST AFFIRMATIVE DEFENSE
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`63.
`
`To the extent that Plaintiff seek recovery for injuries allegedly suffered at a
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`location for which Eaton is claimed to be legally liable at a time when Eaton had no legal
`
`relationship to that location, Eaton cannot be held liable for the alleged injuries.
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`AS AND FOR A
`THIRTY-SECOND AFFIRMATIVE DEFENSE
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`64.
`
`Plaintiff’s claims against Eaton must be dismissed because Eaton did not own,
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`lease, occupy, possess, supervise, manage, and/or control the area at or near the location where
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`Plaintiff was allegedly injured.
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`AS AND FOR A
`THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`65.
`
`Plaintiff’s claims against Eaton must be dismissed because Eaton did not
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`supervise, control, manage, and/or direct Plaintiff, Plaintiff’s employer, Plaintiff’s coworkers,
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`and/or any person or persons in the area at or near the location where Plaintiff was allegedly
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`injured.
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`AS AND FOR A
`THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`66.
`
`The conditions at and around the location at which Plaintiff was allegedly injured
`
`constituted open and obvious hazards against which Eaton had no duty to warn.
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`AS AND FOR A
`THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`67.
`
`To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a
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`location for which Eaton is claimed to be legally liable, Plaintiff’s claims against Eaton must be
`
`dismissed because Eaton did not specify, purchase, or supply any asbestos-containing products,
`
`materials, or equipment used or handled by Plaintiff, Plaintiff’s employer, Plaintiff’s co-workers,
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`and/or any person or persons in the area at or near the location of Plaintiff’s alleged injury.
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`AS AND FOR A
`THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`68.
`
`The conditions at and around the location at which Plaintiff was allegedly injured
`
`constituted open and obvious hazards that Plaintiff was obligated to avoid and/or required to take
`
`reasonable and appropriate precautions so as to avoid injury.
`
`AS AND FOR A
`THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`69.
`
`Plaintiff’s claims are barred or limited by the doctrines of contributory negligence
`
`and comparative fault.
`
`AS AND FOR A
`THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`70.
`
`The alleged injuries were caused directly, solely and proximately by sensitivities,
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`idiosyncrasies, and/or other reactions peculiar to Plaintiff alone and not found in the general
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`public.
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`AS AND FOR A
`THIRTY-NINTH AFFIRMATIVE DEFENSE
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`71.
`
`Plaintiff’s significant pre-existing medical conditions caused the alleged injuries
`
`and/or damages.
`
`AS AND FOR A
`FORTIETH AFFIRMATIVE DEFENSE
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`72.
`
`Eaton did not have a duty to warn Plaintiff.
`
`AS AND FOR A
`FORTY-FIRST AFFIRMATIVE DEFENSE
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`73.
`
`All claims are barred or diminished because of Plaintiff’s failure to preserve
`
`evidence.
`
`AS AND FOR A
`FORTY-SECOND AFFIRMATIVE DEFENSE
`
`74.
`
`Plaintiff was contributorily negligent in:
`
`a. Working with materials he knew or should have known to be hazardous to his
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`health, without use of available protective devices, and without taking reasonable
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`precautions to guard against damages resulting from work with such materials.
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`b. Failing to seek medical treatment and advice, and/or continuing to smoke, after
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`the first manifestation of their alleged asbestos illness;
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`c. Using, in whole or in part, of other substances, products, medications, and drugs;
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`and/or
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`d. As further discovery may reveal.
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`AS AND FOR A
`FORTY-THIRD AFFIRMATIVE DEFENSE
`
`75.
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`If Plaintiff used tobacco products, his use was a failure to exercise ordinary care
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`for his own safety and the sole or primary cause of his injuries. The negligence of Plaintiff in
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`using tobacco products or the negligence of third parties engaged in the sale, manufacture,
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`00499431 v1
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`13 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/10/2024
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`
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`distribution, or use of tobacco products is a partial or complete bar to all claims asserted in
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`Plaintiff’s complaint.
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`AS AND FOR A
`FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`76.
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`Plaintiff misused asbestos and/or asbestos-containing products, materials and/or
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`equipment, which misuse proximately caused and/or contributed to the alleged injuries and
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`damages of which he complains.
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`AS AND FOR A
`FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`77.
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`Plaintiff was warned of the risk of exposure to asbestos and asbestos-containing
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`products, materials and equipment.
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`AS AND FOR A
`FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`78.
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`The alleged incident, injuries, and damages of which Plaintiff complains were
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`caused by unauthorized, unintended, and/or improper use of asbestos, asbestos-containing
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`product, material, and/or equipment complained of, and as a result of the failure to exercise
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`reasonable care, caution, or vigilance for which Eaton is not legally liable or responsible.
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`AS AND FOR A
`FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`79.
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`The conditions precedent to the maintenance of a wrongful death claim have not
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`been met.
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`AS AND FOR A
`FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`80.
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`Any amount of damages recoverable based upon the claims and causes of action
`
`in the Complaint must be diminished by reason of the culpable conduct attributable to Plaintiff,
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`including contributory negligence and assumption of risk, in the proportion which the culpable
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`conduct attributable to Plaintiff bears to the culpable conduct which caused the damages.
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`00499431 v1
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`14 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/10/2024
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`
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`AS AND FOR A
`FORTY-NINTH AFFIRMATIVE DEFENSE
`
`81.
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`Each and every cause of action in the Complaint is barred or limited by reason of
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`the culpable conduct attributable to Plaintiff, including contributory negligence and assumption
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`of the risk.
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`AS AND FOR A
`FIFTIETH AFFIRMATIVE DEFENSE
`
`82.
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`Plaintiff failed to mitigate or otherwise act to lessen or reduce the alleged injuries
`
`and damages.
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`AS AND FOR A
`FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`83.
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`Plaintiff, his coworkers, and/or his employers misused, abused, mistreated,
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`misapplied, and/or substantially modified the product, material, and/or equipment to which
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`Plaintiff alleges exposure.
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`AS AND FOR A
`FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`84.
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`If the Court finds that any misuse, abuse, mistreatment, misapplication, and/or
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`substantial modification of the product, material, or equipment caused and/or contributed to the
`
`alleged damages or injuries, Eaton requests that the amount of damages that might be
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`recoverable be diminished by the proportion that the same misuse, abuse, mistreatment,
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`misapplication, and/or substantial modification attributed to Plaintiff, his coworkers, and/or his
`
`employers bears to the conduct that caused the alleged injuries or damages.
`
`AS AND FOR A
`FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`85.
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`Each and every cause of action in the Complaint is barred in whole or in part by
`
`the negligence and conduct of Plaintiff’s employers.
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`00499431 v1
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`15 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/10/2024
`
`
`
`AS AND FOR A
`FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`86.
`
`Eaton asserts the change of the product, material, or equipment’s condition as a
`
`defense.
`
`AS AND FOR A
`FIFTY-FIFTH AFFIRMATIVE DEFENSE
`
`87.
`
`Plaintiff failed to exercise ordinary care for his own safety, and that failure is a
`
`partial or complete bar to all claims asserted in the Complaint.
`
`AS AND FOR A
`FIFTY-SIXTH AFFIRMATIVE DEFENSE
`
`88.
`
`If Plaintiff should prove that injuries and damages were sustained as alleged, such
`
`injuries and damages resulted from acts or omissions on the part of third parties over whom
`
`Eaton had no control or right of control.
`
`AS AND FOR A
`FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`89.
`
`Plaintiff’s claims are barred to the extent they are based on exposure, if any, of
`
`Plaintiff to materials or raw materials sold or supplied by Eaton as a bulk supplier or a
`
`component supplier.
`
`AS AND FOR A
`FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`90. While Eaton denies Plaintiff’s allegations as to negligence, statutory liability,
`
`strict liability, premises liability, injury, and damages, to the extent that Plaintiff may be able to
`
`prove the same, they were the result of intervening and/or interceding acts of superseding
`
`negligence on the part of third parties over whom Eaton had neither control nor right of control.
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`00499431 v1
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`16 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/10/2024
`
`
`
`AS AND FOR A
`FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`91.
`
`Plaintiff’s employer’s failure to provide the proper equipment to ensure a safe
`
`working environment was a proximate cause of the alleged injuries.
`
`AS AND FOR A
`SIXTIETH AFFIRMATIVE DEFENSE
`
`92.
`
`Eaton at all times relevant hereto complied with all applicable federal, state, and
`
`other regulations, and acted reasonably in all of its activities.
`
`AS AND FOR A
`SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`93.
`
`Eaton is immune from liability for any conduct performed in conformity with the
`
`United States government specifications and/or contracts.
`
`AS AND FOR A
`SIXTY-SECOND AFFIRMATIVE DEFENSE
`
`94.
`
`To the extent that Eaton might be held vicariously liable for the actions or
`
`inactions of the Federal Occupational Safety and Health Administration (“OSHA”), the Federal
`
`Environmental Protection Agency (“EPA”), and/or other federal, state, and city agencies and
`
`employees for which those agencies or employees are immune from liability under federal and/or
`
`state common law and/or under federal and/or state statute, Eaton is likewise immune from
`
`liability for those actions or inactions pursuant to the federal and/or state common law and/or
`
`federal and/or state statute.
`
`AS AND FOR A
`SIXTY-THIRD AFFIRMATIVE DEFENSE
`
`95.
`
`Eaton is immune from liability for any conduct performed in conformity with the
`
`specifications mandated by Plaintiff’s employer.
`
`00499431 v1
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`17 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/10/2024
`
`
`
`AS AND FOR A
`SIXTY-FOURTH AFFIRMATIVE DEFENSE
`
`96.
`
`This action is barred by the doctrines of sophisticated purchaser/employer,
`
`sophisticated/learned intermediary, and/or sophisticated user.
`
`AS AND FOR A
`SIXTY-FIFTH AFFIRMATIVE DEFENSE
`
`97.
`
`Eaton owed no legal duty to Plaintiff.
`
`AS AND FOR A
`SIXTY-SIXTH AFFIRMATIVE DEFENSE
`
`98.
`
`At all times relevant hereto the knowledge of other persons, business entities,
`
`and/or governmental entities, and the ability of such other persons, business entities, and/or
`
`governmental entities to take actions to prevent the alleged injuries and damages, was superior to
`
`that of Eaton and, therefore, if there was a duty to warn Plaintiff, then the duty was on those
`
`other persons, business entities, and/or governmental entities, and not on Eaton.
`
`AS AND FOR A
`SIXTY-SEVENTH AFFIRMATIVE DEFENSE
`
`99.
`
`The failure of the purchasers/employers to warn and/or safeguard Plaintiff from
`
`any possible health hazards associated with asbestos was an intervening and/or superseding
`
`cause of the alleged injuries.
`
`AS AND FOR A
`SIXTY-EIGHTH AFFIRMATIVE DEFENSE
`
`100. At all times during the conduct of its corporate operations, the agents, servants,
`
`and/or employees of Eaton used proper methods in designing, testing, and manufacturing its
`
`products, materials, and equipment in conformity with the federal and state regulations,
`
`standards, specifications, and laws in effect; the available knowledge and research of the
`
`scientific and industrial communities; the generally recognized and prevailing industry standards;
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`00499431 v1
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`18 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/10/2024
`
`
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`and the state of the art in existence at the time the design was prepared and the products,
`
`materials, and/or equipment manufactured and tested.
`
`AS AND FOR A
`SIXTY-NINTH AFFIRMATIVE DEFENSE
`
`101. At all times during the conduct of its corporate operations, the agents, servants,
`
`and/or employees of Eaton acted in conformity to the available knowledge and research of the
`
`scientific and industrial communities.
`
`AS AND FOR A
`SEVENTIETH AFFIRMATIVE DEFENSE
`
`102. Eaton had no knowledge of the dangerous propensities, if any, of the products,
`
`materials, and/or equipment that allegedly caused injuries to Plaintiff.
`
`AS AND FOR A
`SEVENTY-FIRST AFFIRMATIVE DEFENSE
`
`103. At all times relevant hereto, the state of the medical, industrial, and scientific arts
`
`was that there was no generally accepted or recognized knowledge of any unsafe, inherently
`
`dangerous, hazardous, or defective character or nature of asbestos or asbestos-containing
`
`products, materials, and/or equipment when used in the manner and for the purposes intended, so
`
`that there was no duty by Eaton to know of such character or nature or to warn Plaintiff or others
`
`similarly situated, and that, to the extent such duty arose, adequate warnings either were given or
`
`were not necessary under all circumstances.
`
`AS AND FOR A
`SEVENTY-SECOND AFFIRMATIVE DEFENSE
`
`104. This action cannot be maintained on substantive or jurisdictional statutes or legal
`
`theories which did not exist prior to the date on which Plaintiff allegedly used Eaton’s products,
`
`materials, and/or equipment, in that such statutes are inapplicable to this action, and in that the
`
`application of such legal theories to this action would be unconstitutionally retroactive.
`
`00499431 v1
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`19 of 31
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`FILED: ERIE COUNTY CLERK 01/10/2024 04:29 PM
`NYSCEF DOC. NO. 32
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/10/2024
`
`
`
`AS AND FOR A
`SEVENTY-THIRD AFFIRMATIVE DEFENSE
`
`105. Eaton is not a joint tortfeasor with any other defendant herein, and accordingly,
`
`Eaton may not be jointly and severally liable with other defendants.
`
`AS AND FOR A
`SEVENTY-FOURTH AFFIRMATIVE DEFENSE
`
`106. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
`
`unavailable because of the provisions of the applicable Statute of Frauds.
`
`AS AND FOR A
`SEVENTY-FIFTH AFFIRMATIVE DEFENSE
`
`107. Eaton denies the existence of any express warranty, implied warranty, privity,
`
`and/or breach of warranty.
`
`AS AND FOR A
`SEVETY-SIXTH AFFIRMATIVE DEFENSE
`
`108. As to all the causes of action in the Complaint which may be based upon express
`
`or implied warranties and/or representations, such causes of action are legally insufficient as
`
`against Eaton by reason of their failure to allege privity of contract between Plaintiff and Eaton.
`
`AS AND FOR A
`SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`109. Plaintiff did not directly or indirectly purchase any asbestos or asbestos-
`
`containing products, materials, and/or equipment from Eaton, and Plaintiff neither received nor
`
`relied upon any warranty or representation that may be alleged to have been made by Eaton.
`
`AS AND FOR A
`SEVENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`110.
`
`In the event that any breach of warranty is proven, Plaintiff failed to give proper
`
`and prompt
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