Arizona Holds No Duty of Care Owed in a Take-Home Exposure Case

A Win for the Defense

May 2018
Beverly M. Bond, Quincy A. M. Jones

May 11, 2018 was a victory for HPTY clients as Arizona joined the growing number of states holding that an employer owes no duty of care in an alleged “take-home asbestos exposure” lawsuit. Edward Slaughter, chair of the toxic tort and environmental group, represented the prevailing parties in the case at oral arguments; Rob Gilbreath, chair of the appellate group, briefed the arguments; and Beverly Bond, partner, managed the case and prepared the defenses.

In Quiroz v. Alcoa Inc.,1 the family of Ernest Quiroz, Jr. sued multiple entities claiming that Quiroz Jr.’s mesothelioma was caused by exposure to asbestos fibers carried home on his father’s (Quiroz Sr.) clothes. The family alleged that Quiroz Sr.’s employer, Reynolds Metals Company, owed Quiroz Jr. a duty, and breached that duty of care when Quiroz Jr. was introduced to the asbestos fibers brought home by his father.

The threshold inquiry for any negligence cause of action is establishing whether a duty of care is owed, which is not presumed in Arizona. Contrary to the family’s arguments and misconstruction of the law, the court emphasized that a defendant’s duty of care does not turn on the foreseeability of injury. In fact, foreseeability is not even a factor in Arizona’s duty framework. Further, the court will not examine the specific facts of the case or the parties’ specific actions; rather, Arizona courts limit the duty analysis to special relationships and public policy.

Although the family did not cite any state or federal statute giving rise to a duty (which is Arizona’s primary source for a duty based on public policy), the court addressed the family’s unfounded, conclusory arguments. Finding no source of a valid public policy creating a legal relationship giving rise to a duty, the court held there was no duty based on public policy.2

The family also argued that Arizona case law and various restatement sections imposed a special relationship between Reynolds and any member of the public who may have been secondarily exposed to asbestos. Facing this issue of first impression, the court ultimately rejected all of the family’s attempts to establish Reynolds owed a duty of care to Quiroz. The court firmly rejected each argument in turn—(1) no employer-employee relationship; (2) no contractual or undertaking relationship; (3) no landowner-invitee or -licensee relationship; and (4) no general duty to the public for off-premises injuries regardless of whether based on Arizona law, foreseeability, or the restatement.3

The court forcefully rejected the “risk-creation” framework and “no-duty” rule in the Third Restatement § 7 proposed by Amicus and the dissent. The framework in § 7 used an entirely different conceptual approach than Arizona’s, particularly the notion that Arizona presumes a duty when a defendant creates a risk of harm. Even more problematic, the Third Restatement creates a presumed duty of care owed by all people at all times, which carries “serious consequences” and expands tort liability “beyond manageable bounds.” This would create an unmanageable class of potential plaintiffs—neighbors, friends, babysitters, cab drivers, waiters, bartenders, dentist, physicians, fellow church members, and children’s payments and schoolmates. Ultimately, imposing a limitless tort duty would be a“drastic” and “unwarranted” expansion of liability, which would leave little room for individual liability, and would expose every business and person to tort liability for every act taken.

After considering all oral arguments and briefing, including the multiple amicus briefs filed, the court held that an employer had no duty to protect the public from alleged secondary exposure as there was no special relationship or public policy that would give rise to a duty. Accordingly, Arizona joined the multiple jurisdictions that have declined to find a duty of care in “take-home exposure” cases.4

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1 For the full opinion, see Quiroz v. Alcoa Inc., No. CV-16-0248-PR,(Ariz. Filed May 11, 2018). For the full Arizona Court of Appeals opinion, see Quiroz v. Alcoa Inc., 240 Ariz. 517, 519, 382 P.3d 75, 77 (Ct. App. 2016).

2 Quiroz Jr.’s last date of possible secondary exposure was in 1970, which is prior to the enactment of several federal statutes. Accordingly, the court did not address whether those statues may give rise to a duty for secondary exposure.

3 Overall, the court rejected the“far-reaching general duty” proposed by Amicus and the dissent. The court, again, articulated that foreseeability does not play a factor in the duty analysis; thus, Restatement § 364, § 371, and any case relying on those sections cannot serve as a basis for imposing a duty.

Riedel v. ICI Americas Inc., 968 a.2d 17 (Del. 2009) (Delaware); Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (2011) (Delaware); CSX Transp., Inc. v. Williams, 278 Ga. 888 (2005) (Georgia); Van Fossen v. MidAmerican Energy Co.,777 N.W.2d 689 (2009) (Iowa); In reCertified Question from Fourteenth Dist. Court of Appeals of Texas, 479Mich. 498 (2007) (Michigan); In re NewYork City Asbestos Litigation, 5 N.Y.3d 486 (2005) (New York); Gillen v. Boeing Co., 40 F.Supp.3d 534(2014) (Pennsylvania); Adams v.Owens-Illinois, Inc., 119 Md.App. 395 (1998) (Maryland); Boley v. Goodyear Tire & Rubber Co.,125 Ohio St.3d 510 (2010) (Ohio); Palmer v. 999 Que., Inc., 874 N.W.2d 303 (N.D. 2016) (North Dakota).

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