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Posted by Ted A. Schmidt | May 21, 2018 | 0 Comments


Quiroz v Alcoa Inc., __Ariz. Adv. Rep. __, No. 16-0248-PR (May 11, 2018) (J. Gould)


Plaintiff's decedent Ernest Quiroz died in October 2014 of mesothelioma from cancer associated with exposure to asbestos his father brought home from work each day on his work clothes. Plaintiffs alleged the defendants had a duty to warn Quiroz's father of the risk of secondary exposure to asbestos and to protect Quiroz from the exposure. Plaintiffs alleged defendants negligently failed to meet this duty causing Quiroz's death. The trial court granted the defendants summary judgment and the Arizona Court of Appeals affirmed. The Arizona Supreme Court affirmed the trial court and essentially agreed with the court of appeals but vacated the court of appeals opinion finding no duty to support the negligence claim. We hold that the employer owed no duty to the public regarding secondary asbestos exposure. No common law special relationship existed requiring the employer to protect the public from secondary asbestos exposure. Additionally, Plaintiffs/Appellants have identified no public policy giving rise to such a duty. Further, because we reject the duty framework contained in the Restatement (Third) of Torts: we hold that no duty exists on that basis. In reaching our decision today, we affirm Arizona's current duty framework in several key respects. First, duty is not presumed; in every negligence case, the plaintiff bears the burden of proving the existence of a duty. Second, pursuant to Gipson v. Kasey, 214 Ariz. 141, 144 (2007), foreseeability is not a factor in determining duty. Third, duty is based on either special relationships recognized by the common law or relationships created by public policy. Fourth, in the context of duty, the primary sources for identifying public policy are state and federal statutes. In the absence of such legislative guidance, duty may be based on the common law — specifically, case law or Restatement sections consistent with Arizona law.

 Here while the defendants may have had a special relationship with Quiroz's father they had no such relationship with Quiroz.  Further no public policy basis exists to support a finding of duty because there are no Arizona or Federal statutes creating such a duty.  The court rejected analogous Arizona common law which clearly holds landowners responsible for harm caused to those off the premises, finding statements such as The Second Restatement § 371  inapposite. ”A possessor of land is subject to liability for physical harm to others outside of the land caused by an activity carried on by him thereon which he realizes or should realize will involve an unreasonable risk of physical harm to them under the same conditions as though the activity were carried on at a neutral place.” § 371 requires the plaintiff have a right to be in the “neutral place” where the injury occurs, hence a special relationship. Quiroz had no special relationship with the defendants to support this common law argument.

 The court further rejected the notion that a duty arises under public policy whenever a defendant creates a risk of harm to a plaintiff because such an analysis invokes the concept of foreseeability which Gipson expressly rejected as a justification for creating a duty. While foreseeability may define the standard of care and causation, it has no place in determining the question of whether a tort duty exists.

 In conclusion the majority opinion states “imposing a limitless tort duty on society may well deter negligent behavior, but it leaves little room for individual liberty and personal autonomy. Under such a framework, there are no fixed rights or duties prescribing a person's responsibilities before they act. Rather, every act a person or business engages in exposes them to tort liability.”                    ‘

 In a cogent dissent Chief Justice Bales wrote for himself and Vice Chief Justice Pelander:

 The majority holds that an employer who knew its workers were being exposed to toxic asbestos dust on the job and failed to warn them or provide reasonable protective measures, such as overalls, showers, or changing facilities, owed no duty of care to children who developed mesothelioma from dust carried home in their parents' work clothes. Although the employer created the risk of physical harm - and failed to warn its employees or the persons ultimately injured - the majority concludes that the employer must be immunized from even the prospect of liability, no matter how reckless or otherwise unreasonable its conduct may have been. This result, the majority contends, serves to protect the employer's ‘individual liberty.' One would think the children had a greater right to be free from others unreasonably exposing them to risks of debilitating and life-threatening illness.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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