An Arizona court of appeals recently held that no duty was owed to a family member who contracted mesothelioma due to alleged take-home exposure. In Quiroz v. Alcoa, Inc., et al., No. 1 CA-CV 15-0083 (2016), the Arizona Court of Appeals was asked to decide whether an employer owes a duty of care to the family member of an employee who contracts mesothelioma due to asbestos brought home on the employee’s work clothing. Noting that the question was a matter of first impression in Arizona, the Court held that no duty was owed, and affirmed summary judgment for the employer.
Plaintiffs in Quiroz alleged that their decedent, Ernest Quiroz, was exposed to asbestos via the work clothing of his father, who was for many years an employee of Reynolds Metal Company (“Reynolds”). Plaintiffs alleged that the decedent’s father was exposed to asbestos-containing machinery and products while working for Reynolds, and carried the asbestos fibers home with him on his clothing. The decedent contracted mesothelioma in 2013 and died a year later. Reynolds moved for summary judgment, arguing that no duty of care was owed to the decedent under Arizona law, and the trial court granted the motion.
On appeal, the Court reviewed the lower court’s grant of summary judgment de novo. Plaintiffs first argued that Reynolds owed a duty to decedent under the Restatement (Third) of Torts § 54(a). That section imposes a duty of “reasonable care” to possessors of land “for artificial conditions or conduct on the land that pose a risk of physical harm to persons or property not on the land.” (emphasis added). The Court noted that no Arizona decision had ever interpreted this section or declared it to be the law of Arizona. Analyzing the official comments, the Court found that § 54(a) was described as a “special application of § 7” which imposes a general duty of reasonable care on all persons. But the Arizona Court of Appeals had already rejected § 7 of the Restatement (Third) of Torts as incompatible with Arizona law, since it effectively eliminates the duty element of a negligence claim. The Court declined the invitation to reverse that holding in Quiroz.
Plaintiffs next argued that Reynolds owed a duty under the Restatement (Second) of Torts § 371. No Arizona court had ever ruled on the applicability of § 371, so the Court of Appeals considered for the first time its compatibility with Arizona law. Section 371 imposes duty on the possessor of land to persons outside the land for unreasonable risks “which he realizes or should realize.” Thus, the Court interpreted duty under this section to hinge on foreseeability. Noting that foreseeability is not part of the duty analysis under Arizona law, the Court declined to apply § 371.
Next, the Plaintiffs urged the Court to impose a duty on Reynolds for public policy reasons. The Court of Appeals dealt with Plaintiffs’ public policy arguments in summary fashion. In essence, the Court found that the Plaintiffs’ theory of take-home liability contained no limiting principle. It could extend to “plaintiffs who never visited the employers’ premises but came into contact with…asbestos clothing in a taxicab, a grocery store…or a laundromat.” In other words, Plaintiffs’ theory would lead to a proliferation of claims, unlimited liability, and new channels of liability, each of which is disfavored under Arizona law.
Finally, the Court briefly reviewed the decisions of other state courts to consider the take-home exposure question. The Court noted that the few decisions which have recognized a duty of care in take-home cases have focused on the foreseeability of harm. For example, New Jersey, Tennessee, Louisiana and Washington have all recognized a duty of care in take-home cases, and each state emphasizes foreseeability in its duty analysis. In contrast, Georgia, New York, and Michigan have all rejected take-home exposure claims. These states do not focus on foreseeability as part of their analysis of duty in negligence claims. As noted above, Arizona likewise does not focus on foreseeability in its duty analysis. Thus, the Court held that Reynolds owed no duty to the decedent, and affirmed the trial court’s grant of summary judgment.