No Infinite Legal Duty: Arizona Supreme Court Rejects “Take Home” Asbestos Liability Theory

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A business’s legal duty?

By Darrian Matthews, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Under the law, employers are responsible for protecting the health, safety, and welfare of their employees, along with other people who might be affected by their business. The question then is how far do those duties extend? In Quiroz v. Alcoa, the Arizona Supreme Court held that although an employer undeniably owes a duty to employees for asbestos exposure, they owe no duty to the public at large regarding secondary asbestos exposure. By deciding that Arizona companies have no duty to protect family members from exposure to harmful materials their employees may take home on their work clothes, Arizona has refused to go the way of neighboring states on “take home” asbestos liability.

Asbestos—a heat-resistant, naturally occurring mineral—was banned from use in industrial manufacturing over 40 years ago. Over those four decades, workers that handled machinery or installed parts insulated with asbestos or were otherwise exposed were found to have developed various diseases, including mesothelioma. Once these injuries began to arise, a litigation explosion commenced and businesses that originally mined and sold asbestos went bankrupt.

As those primary targets became insolvent, plaintiffs’ lawyers began suing solvent companies further down the distribution chain. They also expanded their liability theories to allege that spouses and other relatives of asbestos-exposed workers had damage claims. Instead of being exposed directly, these individuals purportedly came into contact with asbestos through a family member’s clothing. This is known as “secondhand” or take-home asbestos exposure.

Ernest V. Quiroz died from mesothelioma in October 2014. His family filed a lawsuit against Reynolds Metal Co. for negligently causing his death. It’s important to note that Ernest Quiroz never worked for Reynolds, only his father did. The family alleges that Ernest Quiroz was exposed to asbestos fibers from his father’s work clothes, and that the exposure gave rise to a duty Reynolds owed to Mr. Quiroz. Reynolds moved for and was granted summary judgement, asserting it had no duty to Ernest Quiroz, only his father. The court of appeals affirmed and the Arizona Supreme Court accepted review on two issues: 1) whether Reynolds owed a duty to Quiroz, and 2) whether Arizona should adopt the duty framework from the Restatement (Third) of Torts.

Before negligence can be grounded, there must be a duty owed. In Arizona, foreseeability is not a factor in determining duty pursuant to a 2007 state supreme court decision, Gipson v. Kasey. There, the court reasoned that applying foreseeability to duty required judges to make fact-specific determinations that infringed on the role of the jury. Gipson eliminated foreseeability from Arizona’s duty framework and limited the analysis to strictly special relationships and public policy. The Arizona Supreme Court thus held that Reynolds owed no duty because there was no common-law special relationship between Reynolds and Ernest Quiroz, and no public policy giving rise to a duty existed.

The court made sure to clarify that “duty is not presumed; in every negligence case the plaintiff bears the burden of proving the existence of duty.” Other jurisdictions like California and Alabama still use foreseeability to determine duty and have found companies liable for take-home asbestos based on it. In those jurisdictions duty is presumed when a defendant realized or should realize that his conduct creates an unreasonable risk to a foreseeable plaintiff. Basically a plaintiff would be foreseeable if he was in the “zone of danger” created by the defendant and reasonable person could predict the injury

The court also rejected the plaintiffs’ argument that Reynolds owed Quiroz a duty of care under the Restatement (Third) of Torts. Arizona has never adopted that Restatement’s framework, which provides that duty is ordinarily presumed to exist when a defendant, by his actions, creates a risk of harm to a plaintiff. Not only does this relieve the plaintiff of her burden of proving duty, but it effectively creates a presumed duty of care owed by all people at all times.

One precedent the plaintiffs relied on to demonstrate that state common law, like the Third Restatement, presumes a duty was the Arizona Supreme Court’s decision in Ontiveros v. Borak. The Quiroz court found this reliance erroneous, however. The Ontiveros court addressed tavern owner’s common-law liability for negligence in serving his or her patrons. The court in that case held that “vendors of alcohol are under a duty not to sell liquor where the sale creates a risk of harm to the customer or to others.” The Ontiveros court imposed a duty on the defendant based on a special relationship between a licensee and its patrons, not because the defendant created a general risk of harm for the plaintiff.

Therefore, the Quiroz court refused to change the way it evaluated duty. Adoption of the Restatement would have imposed on Reynolds a limitless duty. The company would be liable to any person that their employees came in contact with after leaving work as the opinion states:

Reynolds would have owed a presumed duty of care to Father’s neighbors and friends, babysitters and cab drivers, waiters and bartenders physicians, and fellow church members. If the asbestos fibers were transferred to the clothes of Father’s children, then the presumed duty of care would have extended to the children’s playmates, schoolmates, and teachers. And of course if each person contacted by Father or his family members transferred asbestos fibers to other third parties, then Reynolds presumed duty would have expanded to an even wider circle of potential plaintiffs.

In the end, the court decided liability has limits and the only duty Reynolds owed was to its employees. Quiroz effectively shuts down Arizona as an option for asbestos-liability lawyers seeking to expand the take-home asbestos theory of recovery. Other states, with their focus on foreseeability, will remain magnets for those suits.  Quiroz provides defendants with a well-reasoned precedent to present to courts who have not yet considered such arguments.

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