DeStories v. City of Phoenix

• Decision Date: 07 May 1987
• Docket Number: No. 1,CA-CIV,1
• Citation: 154 Ariz. 604,744 P.2d 705
• Parties: Thomas P. DeSTORIES and Daria DeStories, husband and wife; John Fornara and Ruth Jean Fornara, husband and wife; Bryan Briceland and Michael John Viscardi, Sr.; Albert Ahrens and Bobbie B. Ahrens, husband and wife; Terry S. Trent, a single man, Plaintiffs-Appellants, v. CITY OF PHOENIX, a body politic, and Liberty Builders, an Arizona corporation, Defendants-Appellees. 8643.
• Court: Arizona Court of Appeals

Page 705

744 P.2d 705

154 Ariz. 604

Thomas P. DeSTORIES and Daria DeStories, husband and wife; John Fornara and Ruth Jean Fornara, husband and wife; Bryan Briceland and Michael John Viscardi, Sr.; Albert Ahrens and Bobbie B. Ahrens, husband and wife; Terry S. Trent, a single man, Plaintiffs-Appellants, v. CITY OF PHOENIX, a body politic, and Liberty Builders, an Arizona corporation, Defendants-Appellees.

No. 1 CA-CIV 8643.

Court of Appeals of Arizona,

Division 1, Department A.

May 7, 1987.

Reconsideration Denied June 29, 1987.

Review Denied Oct. 14, 1987.

[154 Ariz. 605] Friedman & Caldwell by Steven M. Friedman, Phoenix, for plaintiffs-appellants.

Beer & Toone, P.C. by Thomas L. Toone, Phoenix, for defendant-appellee City of Phoenix.

Weyl, Guyer, MacBan & Olson, P.A. by Thomas G. Bakker, Mark A. Williams, Phoenix, for defendant-appellee Liberty Builders.

OPINION

BROOKS, Judge.

This is an appeal from a summary judgment in favor of defendants-appellees (defendants) in plaintiffs-appellants' (plaintiffs) action for damages arising from their exposure to asbestos dust during the interior remodeling of Terminal 2 at Phoenix Sky Harbor International Airport. The principal issue on appeal is whether exposure to and inhalation of airborne asbestos particles, which create an increased risk of asbestosis or lung cancer but no immediate physical deterioration, constitute a sufficient physical injury to support a claim for damages for emotional distress. We also consider whether an increased risk of contracting asbestosis or lung cancer constitutes a legally compensable injury in and of itself, and whether plaintiffs demonstrated the existence of a genuine issue of material fact connected with their claim for anticipated expenditures for increased medical surveillance to detect early signs of lung disease.

Viewed in the light most favorable to plaintiffs, State ex rel. Corbin v. Sabel, 138 Ariz. 253, 674 P.2d 316 (App.1983), the facts are as follows. Plaintiffs were employed in various capacities by subcontractors who contracted with defendant Liberty Builders to participate in renovating the lobby of Terminal 2 at Phoenix Sky Harbor International Airport. During the demolition phase of the work, plaintiffs were exposed to airborne asbestos dust. Plaintiffs' claims against defendants were grounded on allegations that defendants had failed to supply safe working conditions in that they did not protect the plaintiffs from contact with the asbestos materials in the preexisting building at the airport. Plaintiffs' complaints further alleged that their exposure to asbestos resulted in compensable injuries by creating an increased risk that they would contract fatal lung diseases in the future.

While discovery was under way, defendants moved for summary judgment. Their motions primarily disputed the legal proposition that an increased risk of future physical illness or harm may constitute a present injury compensable in damages. ¹ Defendants' motions for summary judgment expressly admitted, at least for purposes of the motions, that during the course of the remodeling of Terminal 2 at Sky Harbor International Airport, the plaintiffs were exposed to asbestos materials.

In support of their opposition to the motions for summary judgment, plaintiffs submitted an affidavit from Richard M. Spiegel, M.D., which stated:

While at the National Institute for Occupational Safety and Health in Cincinnati, Ohio between 1971 and 1973, I participated in research as to the effect upon people of exposure to asbestos in order to establish the federal government standards for occupational exposures; that I have conferred with counsel for the Plaintiffs in the above-entitled matter and have been advised that during the course of the remodeling of Terminal II at Sky Harbor International Airport the Plaintiffs in this matter were exposed to asbestos material; I am advised that the asbestos material to which they were exposed was in the atmosphere being breathed by them without benefit of any protective devices; it is my opinion, based upon a reasonable degree of medical certainty or probability, and based upon my experience and knowledge; that persons exposed to asbestos, as I am informed these Plaintiffs were exposed to asbestos, have an increased probability of contracting a particularly insidious type of cancer, mesothelioma; that in my opinion persons not exposed to airborne asbestos, as these Plaintiffs have been exposed to airborne asbestos, have almost no risk of contracting mesothelioma while persons who have been exposed to airborne asbestos, as have these Plaintiffs, do have a significantly increased risk of contracting the disease. Mesothelioma is a particularly insidious and nearly always fatal disease which comes as a direct result of exposure to airborne asbestos. The disease may have been contracted by the Plaintiffs herein as a result of their exposure to airborne asbestos and there is, at this time, no way to learn if they have contracted the disease as it remains latant [sic] for ten to thirty-five years. Once it manifests itself it spreads rapidly and uncontrollably and eventually causes death.

The trial court granted defendants' motions for summary judgment, reasoning as follows:

Here, Plaintiff[§ are] urging that the fact that asbestos inhalation may cause injury is, in itself, the injury. Present law does not reach so far.

INCREASED RISK OF FUTURE DISEASE AS PRESENT INJURY

Plaintiffs contend that their exposure to airborne asbestos and the consequent increased risk of developing a fatal lung disease in the future constitute legally cognizable injuries for which they may recover damages upon proof of defendants' negligence and legal causation. We cannot agree. The weight of authority in toxic substance cases appears to hold that an increased risk of injury does not constitute a compensable harm absent some proof that actual injury is reasonably certain to occur in the future. In refusing to certify the plaintiffs' class in an action for damages based on the use of diethylstilbestrol the court in Morrissy v. Eli Lilly & Co., 76 Ill.App.3d 753, 32 Ill.Dec. 30, 394 N.E.2d 1369 (1979) stated:

The plaintiff here ... is essentially alleging the existence of latent disease as a present injury to herself and the proposed classes. The nexus thus suggested between exposure to DES in utero and the possibility of developing cancer or other injurious conditions in the future is an insufficient basis on which to recognize a present injury. In Illinois, possible future damages in a personal injury action are not compensable unless reasonably certain to occur. (Citations omitted).

Id. at 1376 (emphasis in original). In Laswell v. Brown, 683 F.2d 261 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983), the plaintiffs were the children of a serviceman who had been exposed to radiation from nuclear blasts. They founded their claim for damages on the allegation that they themselves were thereby subject to an unusually high risk of disease caused by genetically passed cellular damage. The court held that the plaintiffs failed to state a claim for relief absent an allegation that they had sustained actual harm. In Ayers v. Jackson Township, 189 N.J.Super. 561, 461 A.2d 184 (1983), vacated on other grounds, 202 N.J.Super. 106, 493 A.2d 1314 (1985), cert. granted, 102 N.J. 306, 508 A.2d 191 (1985), the plaintiffs alleged that the defendant had negligently contaminated the groundwater in their area with carcinogens and other poisons. The plaintiffs' experts were prepared to testify that each plaintiff had an increased risk of suffering from cancer or liver and kidney damage in the future, but could not quantify the risk or predict with any reasonable probability that the plaintiffs would actually suffer any such disease in the future. The court held that the plaintiffs could not recover for risk enhancement, stating:

As long as the risk exposure remains within the realm of speculation, it cannot be the basis of a claim of injury against the creator of that harm.

461 A.2d at 187. Accord Adams v. Johns-Manville Sales Corp., 783 F.2d 589 (5th Cir.1986) (increased risk of developing cancer from exposure to asbestos products held insufficient absent proof of a medical probability that plaintiff would develop cancer); Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir.1986) (no claim for damages for increased risk of contracting cancer in the future due to asbestos exposure); Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir.1985) (no damages for increased risk of contracting asbestosis or mesothelioma without evidence that plaintiff would contract either disease to a reasonable medical certainty); Schweitzer v. Consol. Rail Corp., 758 F.2d 936 (3d Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985) (possible existence of sub-clinical asbestos-related harm insufficient to sustain tort claim); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla.App.1985) (damages not recoverable for future risk of cancer due to exposure to asbestos).

In the instant case, plaintiffs offered evidence establishing, at most, that they had been exposed to asbestos dust and therefore had an "increased probability" or "significantly increased risk" of developing a fatal lung disease. Plaintiffs offered no evidence that any one of them would contract such a disease to a reasonable medical probability. They accordingly failed to establish any compensable physical harm.

Plaintiffs nevertheless urge that their evidence sufficiently established a present injury under applicable Arizona case law. Again we disagree. In Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984), the case on which plaintiffs primarily rely, our supreme court stated:

When her doctor failed to administer RhoGAM within seventy-two hours of the birth of her first child, Mrs. Kenyon's physical condition changed for the worse because...