Quiroz v. ALCOA Inc.

• Decision Date: 20 September 2016
• Docket Number: No. 1 CA–CV 15–0083,1 CA–CV 15–0083
• Citation: 748 Ariz. Adv. Rep. 18,240 Ariz. 517,382 P.3d 75
• Parties: Ernest V. Quiroz and Mary Quiroz, husband and wife, Plaintiffs/Appellants, v. ALCOA Inc., et al., Defendants/Appellees.
• Court: Arizona Court of Appeals

240 Ariz. 517

382 P.3d 75

748 Ariz. Adv. Rep. 18

Ernest V. Quiroz and Mary Quiroz, husband and wife, Plaintiffs/Appellants,

v.ALCOA Inc., et al., Defendants/Appellees.

No. 1 CA–CV 15–0083

Court of Appeals of Arizona, Division 1.

FILED September 20, 2016

Ely Bettini Ulman & Rosenblatt, Phoenix, By Burton Rosenblatt, Co–Counsel for Plaintiffs/Appellants

Water Kraus & Paul, El Segundo, CA, By Paul C. Cook, Michael B. Gurien, Co–Counsel for Plaintiffs/Appellants

Gordon & Rees LLP, Phoenix, By Molly C. Machold, Mark Tuvim, Co–Counsel for Defendants/Appellees

Hawkins Parnell Thackston & Young LLP, Dallas, TX, By Edward M. Slaughter, Co–Counsel for Defendants/Appellees

Righi Fitch Law Group PLLC, Phoenix, By Elizabeth Savoini Fitch, Counsel for Amicus Curiae Coalition for Litigation Justice, Inc.

Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Patricia A. Orozco and Judge Peter B. Swann joined.

OPINION

THOMPSON

, Judge:

¶ 1 We are asked to decide as a matter of first impression whether an employer owes a duty of care to the child of an employee who contracts mesothelioma

from asbestos brought home on the employee's work clothes. These cases are commonly known as “take-home exposure” cases. See, e.g., Mark A. Behrens, What's New in Asbestos Litigation?, 28 Rev. Litig. 501, 546 (2009). We find no duty of care arises and, therefore, affirm the trial court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Because Appellants challenge a grant of summary judgment against them, we recite the facts in the light most favorable to them. Andrews v. Blake , 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003)

.

¶ 3 Ernest V. Quiroz (Dr. Quiroz) lived in his father's house from 1952 to 1966. During that time, his father worked for Reynolds Metal Company (Reynolds). Dr. Quiroz left home to attend school in California in 1966, and continued to reside in California until 1976. Dr. Quiroz resided in Michigan from 1976 until his death in 2014.

¶ 4 Appellants allege Dr. Quiroz was exposed to asbestos on his father's work clothes during the years he lived in his father's house. Dr. Quiroz was diagnosed with mesothelioma

, a form of cancer frequently associated with asbestos exposure, in 2013. Appellants alleged Reynolds was negligent because

[Dr. Quiroz's] father ... had been exposed, on numerous occasions, to asbestos-containing products and machinery requiring or calling for the use of asbestos or asbestos-containing products or products which caused the release of respirable asbestos fibers ... and, in so doing, his clothing, tools, car, body and general surroundings were contaminated with great quantities of asbestos fibers. [Dr. Quiroz] breathed these asbestos fibers as a result of direct and indirect contact with his father's clothes, tools, car and general surroundings.

Appellants amended their complaint to allege wrongful death when Dr. Quiroz passed away in October 2014.

¶ 5 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.” Appellants timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12–2101(A)(1)

(2016).

DISCUSSION

¶ 6 To establish a negligence claim, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care, (2) the defendant's breach of that standard, (3) a causal connection between the defendant's conduct and the resulting injury, and (4) actual damages. Gipson v. Kasey , 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007)

. “The first element, whether a duty exists, is a matter of law for the court to decide.” Id. We review the trial court's duty ruling de novo. Bloxham v. Glock, Inc., 203 Ariz. 271, 274, ¶ 6, 53 P.3d 196, 199 (App. 2002).

¶ 7 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.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230

(quoting Markowitz v. Ariz. Parks Bd. , 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985) ). Whether a defendant owes the plaintiff a duty of care is a “threshold issue;” absent a duty of care, there can be no viable claim for negligence. Id. at 143, ¶ 11, 150 P.3d at 230.

¶ 8 Whether a defendant owes a plaintiff a duty of care does not turn on the foreseeability of injury. Barkhurst v. Kingsmen of Route 66, Inc. , 234 Ariz. 470, 472, ¶ 10, 323 P.3d 753, 755 (App. 2014)

. In determining whether a duty exists, we do not undertake a fact-specific analysis, nor do we look at the parties' specific actions. Boisson v. Ariz. Bd. of Regents , 236 Ariz. 619, 623, ¶ 11, 343 P.3d 931, 935 (App. 2015). A duty “may arise from the relationship between the parties or, alternatively, from public policy considerations.” Id. at 622, ¶ 7, 343 P.3d at 934

. We consider both possible duty sources below.

I. There Was No Special or Categorical Relationship Between Dr. Quiroz and Reynolds.

¶ 9 A duty of care may arise from a special relationship based on contract, family relations, or conduct undertaken by the defendant, or may be based on categorical relationships recognized by the common law, such as landowner-invitee. Delci v. Gutierrez Trucking Co. , 229 Ariz. 333, 336, ¶ 12, 275 P.3d 632, 635 (App. 2012)

.

¶ 10 Appellants do not contend Reynolds and Dr. Quiroz had either a special or categorical relationship.¹ Appellants instead argue Reynolds owed a duty to avoid creating hazardous conditions on its property that would cause injury to persons off the property under Restatement (Third) of Torts § 54(a) and Restatement (Second) of Torts § 371

. Generally, we will follow the Restatement if we deem it good legal authority, but will reject it where “Arizona law suggests otherwise.” Powers v. Taser Int'l, Inc. , 217 Ariz. 398, 403, ¶ 19, 174 P.3d 777, 782 (App. 2007). Here, Arizona law does suggest otherwise, as noted below.

A. Restatement (Third) § 54.

¶ 11 Restatement (Third) § 54(a) imposes 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.” The parties cite no Arizona case law interpreting § 54, nor are we aware of any.

¶ 12 According to the official comments, § 54 is a “special application of [Restatement (Third) ] § 7.” Restatement (Third) § 54, cmt. b. Restatement (Third) § 7 states, in relevant part, that “[a]n 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. Restatement (Third) § 7(a); see also Gipson , 214 Ariz. at 147, ¶ 34, 150 P.3d at 234

(Hurwitz, J., concurring) (noting that, under § 7, courts would “view the duty of reasonable care as the norm”).

¶ 13 We have previously declined to adopt the general duty of care proposed by § 7, 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 Third Restatement approach significantly lessens the role of the court as a legal arbiter of whether society should recognize the existence of a duty in particular categories of cases; for this reason, adopting the Third Restatement would increase the expense of litigation.

Delci , 229 Ariz. at 338, ¶ 18, 275 P.3d at 637

; see

Alcombrack v. Ciccarelli , 238 Ariz. 538, 542, ¶ 11, 363 P.3d 698, 702 (App. 2015). We see no reason to adopt § 54's “special application” of that same duty. See

Hafner v. Beck , 185 Ariz. 389, 391, 916 P.2d 1105, 1107 (App. 1995) (“We do not understand the law to be that one owes a duty of reasonable care at all times to all people under all circumstances.”).

¶ 14 Appellants also point to Ontiveros v. Borak

, where our supreme court stated in dicta that “every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others.” 136 Ariz. 500, 509, 667 P.2d 200, 209 (1983). We distinguished this statement in Delci, noting that the Ontiveros holding hinged on “the relation of the licensed supplier of liquor and his patron requiring the licensee to take affirmative measures to control or avoid increasing the danger from the conduct of others,” a relationship not present either in Delci or in this case. See

Delci , 229 Ariz. at 338, ¶ 17, 275 P.3d at 637 (internal quotation marks omitted). We also distinguished the same statement in Alcombrack

, finding that it was not an implicit endorsement of Restatement (Third) § 7. 238 Ariz. at 542, ¶ 13, 363 P.3d at 702.

¶ 15 For these reasons, we decline Appellants' invitation to apply Restatement (Third) § 54 in this case. See Delci , 229 Ariz. at 338, ¶ 18, 275 P.3d at 637

(stating that adoption of the Restatement (Third) “requires an evaluation of competing public policies that is more appropriately addressed to the Arizona Supreme Court.”).

B. Restatement (Second) § 371

.

¶ 16 Restatement (Second) § 371

states:

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.

(Emphasis added.) The parties cite no Arizona case law interpreting § 371

, but the official comments state that a possessor will not be liable under this section “unless he should not only recognize the risk involved in his act, but should also realize that the risk is unreasonable.” Id. cmt. b.

¶ 17 Section 371

thus hinges on foreseeability, which is not part of the duty analysis under Arizona law. Barkhurst , 234 Ariz. at 472, ¶ 10, 323 P.3d at 755. We thus decline to apply Restatement (Second) § 371.

C. Reynolds Did Not Owe Dr. Quiroz a Duty...