No Duty to Prevent Take Home Exposure in Arizona

The Arizona Court of Appeals has held in a case of first impression that an employer has no duty of care to protect family members from asbestos taken home on an employee’s work clothes. Quiroz v. ALCOA Inc., et al., No. 1 CA–CV 15–0083 (9/20/2016).

Background Facts

laundryDr. Ernest V. Quiroz was allegedly exposed during his childhood to asbestos brought home on his father’s work clothes from the Reynolds Metals extrusion plant in Phoenix. Dr. Quiroz left the family home at age 14 to attend seminary high
school in Los Angeles. He gave up plans for the priesthood after meeting the girl he would marry, and instead attended college in Los Angeles and medical school in Michigan before entering practice in Grand Rapids in the 1980s. Dr. Quiroz was diagnosed with mesothelioma in 2013, and died the following year at age 62. Dr. Quiroz testified in his deposition that he never entered the Reynolds Metals extrusion plant, and acknowledged that his only asbestos exposure related to Reynolds Metals would have been from his father’s work clothes. The trial court granted Reynolds Metals’ summary judgment motion based on the lack of duty under Arizona law to an employee’s family members. Plaintiffs timely appealed.

The Court’s Analysis

Dr. Quiroz was a very sympathetic claimant – potential priest, respected doctor, lay leader of his church, devoted husband and father with five children and six grandchildren – and absolutely no occupational or para-occupational exposure. His family and counsel, Waters Kraus & Paul, sought to use this case to extend liability for take-home exposure beyond the limited number of states that have recognized the claim. Acknowledging that there was no “special relationship” between Reynolds Metals and Dr. Quiroz, plaintiffs argued that premises owners such as Reynolds Metals had a duty to protect persons from hazards which foreseeably left their premises based on three main grounds: (1) Restatement (Third) of Torts §7 (imposing a general duty of reasonable care on all persons), (2) Restatement (Third) of Torts §54 (imposing a duty of 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”), and (3) “public policy.”

The Court of Appeals rejected each of plaintiffs’ arguments and affirmed the trial court’s grant of summary judgment. Consistent with the common law around the country, the existence of a duty of care is a pre-requisite for a negligence claim in Arizona. However, the Arizona Supreme Court has steadfastly rejected any consideration of foreseeability in determining the existence of a duty of care. The Quiroz court noted that Arizona had previously declined to adopt any general duty of care such as that in Restatement (Third) of Torts §§7 and 54, and it declined to do so here as well, explaining 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.

The court further declined plaintiffs’ invitation to either follow Restatement (Second) of Torts § 371 (imposing on a possessor of land liability for physical harm to others outside of the land caused by an activity thereon which he realizes or should realize will involve an unreasonable risk of physical harm) or to recognize a duty on the part of Reynolds Metals as a landowner to Dr. Quiroz, because those theories do – but Arizona does not – consider foreseeability in determining whether a duty of care exists.

Quiroz also rejected plaintiffs’ argument that public policy supported imposing a duty of care, in part because plaintiffs offered no statutory or common law basis for the public policy beyond the Restatement sections discussed (and rejected) above. The court also rebuffed Plaintiff’s argument that “any property owner could reasonably expect that a lack of due care in handling toxins on its premises, resulting in off-premises injury, could lead to liability,” which the court saw this as putting the cart before the horse: “A finding of a duty of care must come before considering whether Reynolds exercised due care.” The court further questioned where the dividing line would be if claims by person off-premises were permitted – would they be limited to family members with regular exposure, or could claims be brought by persons with more tangential alleged exposure, and would such an expansion result in unlimited or insurer-like liability? As Quiroz explained, other states around the country which, like Arizona, do not employ foreseeability in their duty analysis have all rejected claims based on take-home exposure for these and other reasons. Because there was no basis under Arizona law for any duty of care on the part of Reynolds Metals to Dr. Quiroz, no negligence claim could be stated and summary judgment was correctly granted.

Although the Arizona Supreme Court has repeatedly addressed the lack of any role of foreseeability in determining the existence of a duty under Arizona law, we anticipate that Plaintiffs will seek review of the Court of Appeals decision here.

Will California Bar “Take-Home” Exposure Cases? California Supreme Court Grants Review

On August 20, 2014, the California Supreme Court granted review in two “take-home” asbestos exposure cases, Kesner v. Superior Court (2014) 226 Cal.App.4th 251, a negligence and products liability case, and Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104, a premises liability case. “Take-home” cases, aka “secondary exposure” cases, involve plaintiffs alleging exposure to a harmful substance, not from working with a product or at a site that contained the substance, but through their contact with a person (oftentimes a family member) who brought the substance home on their clothing, tools or vehicles.

The key issue in most take-home cases, which is discussed at length in the Kesner and Haver opinions, is whether the defendant employer or premises owner has a legal duty to these plaintiffs. In granting review, the California Supreme Court has an opportunity to curb the number of “take-home” cases asserted in this state.

In Kesner, the plaintiff was sometimes a guest at the home of his uncle, who was employed by defendant Abex manufacturing asbestos-containing products. Kesner held that this was sufficient to create a duty, and that an employer’s duty of care “runs at least to members of an employee’s household who are likely to be affected by toxic materials brought home on the worker’s clothing.” Kesner focused on the foreseeability of harm.

Kesner distinguished the seminal California “take-home” case of Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15,which held that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business.”  Kesner held a “different balance must be struck” when analyzing a negligence claim than with (as in Campbell) a premises liability claim. Kesner “did not question the conclusion in Campbell.” In essence, Kesner carved out an exception to Campbell, allowing the plaintiffs to skirt the bright-line rule by bringing take-home claims under a products liability theory.

A month after the Kesner decision, the Haver court found no “take-home” duty and affirmed a demurrer in favor of defendant BNSF Railway.  The plaintiff was the son of the decedent, alleging his mother inhaled asbestos fibers from her contact with her former husband, who used to work for defendant’s predecessor. On appeal, the plaintiff argued that Campbell was improperly decided or, in the alternative, that the Kesner case compelled a different outcome.  The Haver court rejected both of plaintiff’s arguments, holding instead that “Campbell made clear that its no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency … or the worker’s employment relationship with the landowner.”

As a result of the California Supreme Court’s decision to grant review, the Kesner and Haver decisions have been depublished and may not be cited in California, leaving Campbell as the law in California while the appeals are pending.  The decisions may still be cited in most jurisdictions outside California,

It should be noted that the holding in Campbell is not followed in all jurisdictions.  For example, courts in New Jersey (Olivo v. Owens-Ill., Inc. 186 N.J. 394, 404 (N.J. 2006) (premises liability)), Louisiana (Chaisson v. Avondale Industries, Inc., 947 So.2d 171(La. App. 2007) (premises liability)), and Tennessee (Satterfield v. Breeding Insulation Co. 266 S.W.3d 347, 366-367 (Tenn. 2008) (negligence)) have found that an employer or landowner has a legal duty.

But there is reason to believe that the California Supreme Court will follow Campbell’slead, which aligns with the majority of other states. States recognizing no duty in take-home exposure cases include: Delaware (Price v. E.I. DuPont De Nemours & Co., 26 A.3d 162, 170 (Del. 2011)); Georgia (CSX Transp., Inc. v. Williams, 608 S.E. 2d 208 (Ga. 2005)); Iowa (Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 699 (Iowa 2009)); Kansas (Kan. Stat. Ann. § 60-4905(a) (2012)); Maryland (Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. App. 1998)); Michigan (Miller v. Ford Motor Co. (In re Certified Question from Fourteenth District Court of Appeals of Texas), 740 N.W.2d 206, 222 (Mich. 2007)); New York (In re New York City Asbestos Litigation (Holdampf. v. A.C. & S. Inc.), 5 N.Y.3d 486 (2005)); Ohio (Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448, 453 (Ohio 2010);  R.C.2307.941); and Texas (Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. App. 2007)).  As noted in Haver, the New York and Georgia high courts ruled that finding a legal duty would “upset traditional tort law” and “result in unsound public policy.”

In Kesner, Gordon & Rees partner Don Willenburg submitted an amicus brief on behalf of two defense counsel organizations. The amicus brief argues that Campbell should control all take-home cases, and that a contrary rule (like that the Kesner court adopted) would open the door to a potentially limitless pool of plaintiffs claiming lung cancer and other diseases.

The Kesner and Haver decisions will likely generate significant amicus interest. Amicus briefs are generally filed shortly after the final reply brief of the parties, or about three-four months from now. There is no set timetable for the California Supreme Court to hear argument on or decide the matter after briefing, but we estimate a decision may issue in about 18-24 months. Gordon & Rees has extensive experience in appeals on a wide variety of legal issues and has submitted numerous amicus briefs in cases that resolved favorably for the defense.

The California Supreme Court should adopt the rule in Campbell and the majority of other jurisdictions. And, in the opinion of the author, the holding should extend to premises liability, product liability, and negligence claims to reflect a unifying legal principle that an employer or landowner – even if the employer or landowner also happens to be a manufacturer – has no legal duty to protect someone from secondary exposure who never used the product or never visited the site.