## Facts

- Dow Chemical Company manufactured methyl bromide, a poisonous fumigant labeled as dangerous and highly volatile.
- George Urban Milling Co. used methyl bromide to fumigate a grain storage bin.
- After fumigation, Urban directed its employee, Ralph Dole, to enter the enclosed bin to clean it.
- Dole was exposed to methyl bromide vapors and died.
- The decedent’s estate sued Dow, alleging negligent labeling and inadequate warnings and instructions regarding entry into enclosed spaces after use, necessary dissipation time, and ventilation.
- Dow denied negligence, alleged contributory fault by the decedent, and impleaded Urban.
- Dow’s third-party complaint alleged Urban’s negligence in mishandling the fumigation (including improper precautions, untrained personnel, failure to follow warnings and available instructions, failure to test, and failure to aerate) and sought recovery over from Urban if Dow were held liable.

## Issues

1. Whether a defendant facing potential negligence liability may maintain a third-party claim against another allegedly negligent actor for allocation of loss based on relative fault, rather than a strict “active–passive” indemnity theory.
2. Whether a third-party apportionment/indemnity claim may be asserted against the decedent’s employer despite workers’ compensation exclusivity barring the employee’s direct tort suit against the employer.

## Decision

- The Court of Appeals reversed the Appellate Division and reinstated Dow’s third-party complaint against Urban.
- The court held that Dow could pursue apportionment of responsibility against Urban to the extent Urban’s negligence contributed to the injury.
- The court rejected the “active–passive” and “primary–secondary” negligence dichotomy as the exclusive method for shifting loss between concurrent wrongdoers.
- The court permitted third-party practice to be used to determine relative fault and allocate the ultimate loss among responsible parties, including an employer.

## Legal Principles

- Between concurrent tortfeasors, the loss may be allocated according to each party’s relative degree of fault (relative responsibility), not solely by categorical labels such as “active” versus “passive” negligence.
- A defendant may seek partial indemnity or contribution from another party whose negligence concurred in causing the injury, even where older common-law rules barred contribution among joint tortfeasors.
- Workers’ compensation exclusivity bars the employee’s direct tort claim against the employer but does not necessarily bar a third party’s claim over against the employer for the employer’s share of responsibility.
- Impleader is an appropriate procedural device to litigate fault allocation among multiple responsible actors in a single action.

## Conclusion

The court permitted a defendant to implead an allegedly negligent employer and obtain allocation of damages based on relative fault, replacing rigid indemnity classifications with an apportionment approach that assigns the ultimate loss in proportion to each party’s causal responsibility.


Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972)