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Torts: Employer Has No Duty to Protect Against “Take Home Exposure” of Asbestos

Posted by Ted A. Schmidt | Oct 07, 2016 | 0 Comments

Quiroz v. Alcoa, Inc., 748 Ariz. Adv. Rep. 18 (App. Div. I, September 20, 2016) (J. Thompson)

PROPERTY OWNER NOT LIABLE FOR ASBESTOS EXPOSURE TO FAMILY MEMBERS FROM FATHER'S CLOTHES BROUGHT HOME FROM WORK

Dr. Quiroz' lived with his father from 1952 to 1966 during which time he was exposed to asbestos brought home from work on his father's clothing. He died of mesothelioma in October 2014. His survivors brought this wrongful death action against the father's employer where the asbestos originated.  The trial court granted defendant's motion for summary judgment finding it owed the plaintiffs' decedent no duty and the Arizona Court of Appeals affirmed in this case of first impression.

The existence of a tort duty requires a special relationship such as those created by contract, family relations or conduct undertaken by the defendant or based upon categorical relationships recognized at the common law such as landowner-invitee. 

Plaintiffs cite Restatement (Third) §54(a) which would impose a duty of reasonable care on possessors of land “for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land,” but this is inconsistent with Arizona law and should not be followed. This Restatement provision essentially flies in the face of the longstanding duty analysis traditionally applied in  Arizona which revolves around the plaintiff's status as an invitee or licensee.  Similarly, Restatement (Second) §371 would render a possessor of land 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.” This rule injects foreseeability into the question of duty. Arizona clearly holds that foreseeability has no place in determining the existence of a tort duty.

In Arizona a landowner's duty to licensees for conditions on the land generally ceases when the licensee leaves the premises.  Here the plaintiffs' decedent was neither a licensee nor invitee having never entered the premises in the first place.  Accordingly the defendant landowner owed no duty to this plaintiff.

Next, the court found no public policy basis to support the  finding of a duty here. Where a special relationship, such as landowner—invitee, cannot be found, a duty may still arise out of statutory or common law. All jurisdictions which have found a duty for “take home exposure” to exist have found that duty based upon a foreseeability analysis; totally contrary to Arizona law.  The only other “law” plaintiffs presented to support the existence of a duty based upon public policy was the two Restatement provisions discussed and rejected above.

Finally, the court expressed concern that finding a duty here might significantly increase an already overwhelming and decades old litigation mess created by asbestos exposure.

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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