Employers Not Liable for Employee Take-Home Exposure Court of Appeals of Arizona, Division One, September 20, 2016

The plaintiffs allege Ernest V. Quiroz was exposed to asbestos from his father’s work clothes during the years he lived at his father’s home (1952 to 1966). Defendant Reynolds moved for summary judgment, arguing that it did not owe Dr. Quiroz a duty of care. The trial court granted the motion, finding Reynolds “had no duty to Plaintiffs as a matter of law.” The plaintiffs appealed and the case was heard by the Court of Appeals of Arizona, Division One.

In a negligence action under Arizona law, a “duty” is defined as an obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. Whether a defendant owes the plaintiff a duty of care is a threshold issue; absent this duty of care, there can be no viable claim for negligence.

The Appeals Court noted that whether a defendant owes a plaintiff a duty of care does not turn on the foreseeability of injury [Citation Omitted]. In determining whether a duty exists, the court does not undertake a fact-specific analysis or look at the parties actions. This duty may arise from (a) the relationship between the parties or, alternatively, from (b) public policy considerations. The court addressed both possible duty sources in their decision.

First, the plaintiffs failed to contend that Reynolds and Quiroz had either a special or categorical relationship. Instead, the plaintiffs put forth an argument under Restatement (Third) of Torts Sec. 54(a); which states “an actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm, and imposes a general duty of reasonable care on all persons.” The court responded by noting they previously declined to adopt a general duty of care, finding that doing so would substantially change Arizona’s longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action. The plaintiffs further contended that Quiroz’s injury was foreseeable to Reynolds, and whether Reynolds acted unreasonably in failing to prevent that foreseeable injury, were issues for the jury. The court declined to address this issue as foreseeability is not a consideration in determining whether a duty exists under Arizona law. [Citation Omitted].

Second, the court addressed the fact that a duty of care can originate in public policy arising from statues or common law. However, absent either, they typically will not find a duty based on public policy. In this case, the plaintiffs cited no statutory or common law basis that Reynolds owed a duty of care beyond the Restatement of Torts citation previously discussed. Instead the plaintiffs raised arguments with respect to the following four public policy factors to which the court addressed each in turn:

(1) Reasonable expectations of parties and societies generally. The court found that the plaintiffs did not offer any support for their argument that “any property owner could reasonably expect that lack of due care in handling toxins on its premises, resulting in off-premises injury, could lead to liability.”

(2) Proliferations of claims. The court found this public policy factor would necessitate the court to find a duty of care based in part on foreseeability of harm, which is foreclosed under Arizona law.

(3) Likelihood of unlimited or insurer-like liability. The court found that, absent specific constraints not present in the current case, any company that made or used a potentially hazardous substance could be liable to anyone who ever came in contact with an employee who could have carried the substance off site. Such a dramatic expansion of liability would not be compatible with public policy.

(4) Connection between Reynolds’ Allegedly Negligent Conduct and Quiroz’s Harm. The court found that any connection between Reynolds’ “conduct” and Quiroz’s injuries would go to causation, not duty. Therefore, it is not relevant to this discussion.

After considering Quiroz’s relationship with Reynolds (or lack thereof) and the public policy factors, the Appeals Court concluded the potential drawbacks of recognizing a duty of care in take-home exposure cases outweigh the potential benefits. This court also distinguished other, out-of-state decisions, such as New Jersey, by the fact that they rely on foreseeability in its duty analysis. Under Arizona law, duty is not considered, and the Appeals Court found that Reynolds owed no duty of care to Quiroz for alleged take-home exposure.

Read the full decision here.

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