By Natalie Holden and Anna Choi on July 25, 2018
In its recent decision, the Arizona Supreme Court affirmed the trial court’s grant of summary judgment for defendant Reynolds Metal Company (“Reynolds”), holding that under the State’s laws an employer owed no duty of care to protect an employee’s family from secondary asbestos exposure. See Quiroz v. Alcoa Inc., 416 P.3d 824 (Ariz. 2018).
Plaintiff Mary Quiroz sued on behalf of her deceased husband, Ernest Quiroz, who allegedly developed mesothelioma after eighteen-years of take-home exposure from his father, a Reynolds’ plant worker. Plaintiff asserted that Reynolds owed a legal duty to the decedent under the Restatement Third, and breached this duty when it failed to implement safety measures that would have reduced the risks of indirect exposure to asbestos.
The majority declined to adopt Restatement Third’s risk-creation framework, holding that it would infinitely expand the class of potential plaintiffs in tort litigation by “creat[ing] a presumed duty of care owed by all people at all times, noting that “such a limitless duty framework is impractical, unmanageable and has never been the law in this state.” The majority delved deep into tort law theory, and aptly noted that the “risk-creation framework,” which presumes a duty anytime a defendant’s conduct creates a risk of harm to a plaintiff, essentially eliminates the “duty” element of a negligence claim and instead creates a duty whenever a plaintiff suffers an injury, conflating duty with standard of care. Instead, the majority re-affirmed the decision in Gipson v. Kasey, 214 Ariz. 141 (2007), which held that foreseeability is not a factor in the determination of whether a duty exists. Arizona therefore does not recognize a duty anytime there was a “foreseeable plaintiff” and only recognizes a duty to exist in special relationships or when there is a previously recognized public policy duty. To date, Arizona remains in the jurisdictional minority that eliminates foreseeability from the duty analysis.
The dissent contended that as a matter of public policy, Reynolds’s duty of care should have extended to nonemployees, like the decedent, who were physically harmed by activity occurring on its premises. The majority, on the other hand, held that “public policy” duty exists only when there has been a public policy recognized by the legislature or common law, and that courts should exercise restraint in creating new public policy duties. The Court noted that the creation of public policy belongs to the legislature. Plaintiffs could point to no existing public policy duty, and the majority declined to create a new one. The dissent also relied on cases and Restatement sections predicated on foreseeability of harm, however, the majority noted that these are no longer good law post-Gipson.
Now, employers who are confronted with take-home claims in Arizona or other jurisdictions applying similar tort laws, possess a new case to reference when disputing asbestos liability. Additionally, the in depth discussion of tort law theory and the justification for refusing to recognize “foreseeability” as a factor in the determination of whether a duty exists, provides a helpful analysis that could apply to tort cases more broadly.