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Arizona employer owed no duty of care for secondary asbestos exposure to employee’s child

By Nicole D. Prysby, J.D.

No special relationship existed between an employer and the son of an employee and therefore, the employer owed the son no duty of care regarding secondary exposure to asbestos, held the Arizona Supreme Court. After the son’s death from mesothelioma, the family sued the employer, arguing that the father, who worked for the employer for decades, brought home asbestos fibers on his clothing which caused the son’s death. The lower courts found that there could be no liability because the employer owed no duty of care to the son or to the general public. The Arizona Supreme Court affirmed, finding that Arizona law requires either the existence of a special relationship between the parties or a public policy basis to create a duty. The family cited no statute that would support a public policy basis and the parties had no special relationship. Although the family urged that the court find a general duty of care for landowners to the public for off-premises injuries, the court held that creating such a duty would be contrary to state law, which does not use the foreseeability of an injury to determine duty (Quiroz v. Alcoa, Inc., May 11, 2018, Gould, A.).

The employee worked for the employer from 1943 to 1983, in a position that involved exposure to asbestos. From 1952 to 1970, the employee’s minor son lived with him. The son died in 2014 from mesothelioma and the family sued the employer, arguing that the son’s death was caused by exposure to asbestos fibers on the father’s clothing. The family asserted that the employer had a duty to protect the public from exposure to take-home asbestos and it breached that duty by failing to warn the employee about the dangers of secondary asbestos exposure. The family also alleged that the employer failed to provide safety equipment to the father and failed to take necessary safety measures to protect the son from asbestos exposure. The employer moved for summary judgment, asserting it owed no duty of care to the son. The motion was granted and then affirmed by the court of appeals. The family appealed.

Employer’s duty to protect public. The court first discussed whether the employer had any duty toward the employee’s son and concluded that it did not. Under Arizona law, courts may not use the foreseeability of an injury to determine whether a particular plaintiff is foreseeable (i.e., did the defendant owe the plaintiff a duty?). A duty is based on either a common law special relationship or created by public policy. The family urged that the court find that public policy grounds support the finding of a duty to the son, but did not name a statute that could serve as the basis for such a finding. Therefore, the court declined to find a duty based on public policy. The court also declined to find a duty based on a special relationship, because although the employer owed the father a duty based on the employment relationship, that duty did not extend to the son or the general public. The court rejected the family’s argument that the employer owed a general duty of care to the public for off-premises injuries, because there were no allegations of a landlord-invitee relationship or that the employer had created an attractive nuisance.

The court also rejected the family’s argument that a general duty should be imposed on landowners for off-premises injuries, based on Section 371 of the Second Restatement (”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.”) That section relies on foreseeability and is therefore in conflict with Arizona law. It also cannot be used to create a duty to prevent harm to the general public from off-premises injuries, because any liability for off-premises injury presupposes some special relationship or public policy basis.

The court noted its decision that the employer owed no duty to the son for secondary exposure to asbestos is consistent with decisions in Delaware, Georgia, and North Dakota. Jurisdictions that have found a duty have relied on a foreseeability analysis, which is not relevant in Arizona.

Duty based on Third Restatement. Alternatively, the family argued that the court should find that the employer had a duty of care based on the Third Restatement, Sections 7 and 54, which provides that a duty exists for 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.” The court rejected the Third Restatement approach of presuming a duty when a defendant creates a risk of harm or a possible increase in the risk of harm, because it removes the plaintiff’s burden of needing to show that a duty existed. In addition, the Third Restatement’s risk-creation framework is a much broader view of the concept of risk creation and essentially creates a presumed duty any time there is an injury. Arizona has not accepted the Third Restatement duty framework and does not use risk creation to determine duty. Duty is based solely on special relationships and public policy, and is not presumed. While Arizona courts have in some cases found a duty owed to the general public, that duty has been based on public policy, not on risk creation. Therefore, the court declined to change Arizona’s duty approach to that used by the Third Restatement. Adoption of the Third Restatement approach, the court stated, would create a limitless duty owed by a defendant to the entire world.

Dissent. The dissent would have found that the employer had a duty to the son, because the risk of injury to the son was created by the employer’s manner of operating its business. In addition, the dissent would have found that even if a duty of care needed to be based on public policy, that requirement would be met by the principle that persons must act reasonably when they create risks of physical injury to others, a policy that is reflected in the state constitution. Section 371 of the Second Restatement would also support imposing potential liability on the employer, because it essentially just says that a landowner’s duty of care extends to others off the land who are physically harmed by activity occurring on the land. In this case, the employer should owe a duty of care to ensure that its employees do not carry asbestos dust off its premises, because the employer owes a duty to exercise reasonable care for activities on its property. As a comparison, if a person is playing baseball on her property and hits a person on adjoining property, the ballplayer’s duty of care is not defeated because the injured person was not on the ballplayer’s property. The employer’s conduct here was releasing asbestos and not containing it on its own property. The dissent also would have adopted Section 7 of the Third Restatement, stating that it does not relieve the plaintiff of proving a duty, but simply reflects the common law understanding of duty to strangers—that a person has a duty to exercise reasonable care so as not to harm others when engaging in activity that entails a risk of physical harm.