Ferrera

BACKGROUND

At about 7:40 p.m. on May 1, 2015, appellant was in the bathroom at his place of employment, Larchmont Beauty (Beauty), when he noticed a smoky cloud entering the space. Unbeknownst to appellant, at about this same time, at the Starbucks next door, an employee of Terminix was using a duster to apply a powdered pesticide called Alpine Dust into the cavity of a wall shared by Starbucks and Beauty. On the Starbucks side, the wall was in a storage room; on the Beauty side it was in the bathroom. Appellant was unaware of the application, in part because, although Terminix was required by law to inspect the walls before applying pesticides, Terminix’s technician Mario Ortiz did not check Beauty’s side of the shared wall to determine its integrity. Appellant would later learn that Ortiz used the duster incorrectly, which permitted over-application of the Alpine Dust.

2 Appellant almost immediately began to feel ill and left the bathroom as quickly as possible, calling out to Beauty’s owner Fred Cohanim. Cohanim also saw the smoke and the two men went to knock on the door of Starbucks. The men were concerned there was fire in Starbucks, but quickly realized this was not the…