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Quiroz v. Alcoa Inc.

Court of Appeals of Arizona, First Division

September 20, 2016

ERNEST V. QUIROZ and MARY QUIROZ, husband and wife, Plaintiffs/Appellants,
ALCOA INC., et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2013-009160 The Honorable Sally Schneider Duncan, Judge

          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.


          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.


         ¶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).


         ¶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.2d 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 ...

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