ERNEST V. QUIROZ and MARY QUIROZ, husband and wife, Plaintiffs/Appellants,
ALCOA INC., et al., Defendants/Appellees.
from the Superior Court in Maricopa County No. CV2013-009160
The Honorable Sally Schneider Duncan, Judge
Bettini Ulman & Rosenblatt, Phoenix By Burton Rosenblatt
Co-Counsel for Plaintiffs/Appellants
Kraus & Paul, El Segundo, CA By Paul C. Cook, Michael B.
Gurien Co-Counsel for Plaintiffs/Appellants
& 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,
Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Peter B. Swann
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
AND PROCEDURAL BACKGROUND
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).
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.
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
[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.
amended their complaint to allege wrongful death when Dr.
Quiroz passed away in October 2014.
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).
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.2d 196, 199 (App. 2002).
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.
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.
There Was No Special or Categorical Relationship
Between Dr. Quiroz and Reynolds.
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).
Appellants do not contend Reynolds and Dr. Quiroz had either
a special or categorical relationship. 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 ...