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Quiroz v. ALCOA Inc.

Supreme Court of Arizona

May 11, 2018

Ernest V. Quiroz and Mary Quiroz, husband and wife, Plaintiffs/Appellants,
ALCOA Inc., et al., Defendants/Appellees. v.

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

         Opinion of the Court of Appeals, Division One 240 Ariz. 517 (App. 2016) VACATED

          Burt Rosenblatt, Ely Bettini Ulman & Rosenblatt, Phoenix; Michael B. Gurien (argued), Waters, Kraus & Paul, El Segundo, CA, Attorneys for Ernest V. Quiroz and Mary Quiroz

          Edward M. Slaughter (argued), Hawkins Parnell Thackston & Young LLP, Dallas, Texas; Molly C. Machold, Mark B. Tuvim, Gordon & Rees LLP, Phoenix, Attorneys for Alcoa, Inc., et al.

          David L. Abney, (argued) Ahwatukee Legal Office, PC, Phoenix; Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association

          Ellen M. Bublick, University of Arizona James E. Rogers College of Law, Tucson, Attorney for Amicus Curiae

          Elizabeth S. Fitch, Righi Fitch Law Group, PLLC, Phoenix, Attorney for Amicus Curiae Coalition for Litigation Justice, Inc.

          Christopher Robbins, Hill, Hall & DeCiancio, PLC, Phoenix, Attorney for Amicus Curiae Arizona Association of Defense Counsel

          Thomas E. Kelly, Jr., K&L Gates LLP, Seattle, WA, Attorney for Amicus Curiae Chamber of Commerce of the United States of America

          JUSTICE GOULD authored the opinion of the Court, in which JUSTICE BRUTINEL and JUSTICES TIMMER, BOLICK, and LOPEZ joined. CHIEF JUSTICE BALES and VICE CHIEF JUSTICE PELANDER dissented.


          GOULD, JUSTICE

         ¶1 We address whether an employer who used asbestos materials in its workplace before 1970 had a duty to protect the public from off-site contact with employees who may have been carrying asbestos fibers on their work clothes. Such exposure is referred to as secondary, or take-home, asbestos exposure. We hold that the employer owed no duty to the public regarding secondary asbestos exposure. No common law special relationship existed requiring the employer to protect the public from secondary asbestos exposure. Additionally, Plaintiffs/Appellants have identified no public policy giving rise to such a duty. Further, because we reject the duty framework contained in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm ("Third Restatement"), we hold that no duty exists on that basis.

         ¶2 In reaching our decision today, we affirm Arizona's current duty framework in several key respects. First, duty is not presumed; in every negligence case, the plaintiff bears the burden of proving the existence of a duty. Second, pursuant to Gipson v. Kasey, 214 Ariz. 141, 144 ¶ 15 (2007), foreseeability is not a factor in determining duty. Third, duty is based on either special relationships recognized by the common law or relationships created by public policy. Fourth, in the context of duty, the primary sources for identifying public policy are state and federal statutes. In the absence of such legislative guidance, duty may be based on the common law - specifically, case law or Restatement sections consistent with Arizona law.

         BACKGROUND [1]

         ¶3 Ernest V. Quiroz died in October 2014 from mesothelioma, a form of cancer associated with exposure to asbestos. Quiroz's surviving wife, children, and parents (collectively, "the Family") filed a lawsuit, alleging Defendants Reynolds Metal Company, Alcoa, Inc., and Reywest Development Company (collectively, "Reynolds") negligently caused his death. Specifically, the Family alleges that when Quiroz's father ("Father") was working at Reynolds' plant from 1948 until 1983, his clothes were contaminated with asbestos fibers. The Family contends that when Father came home from work, Quiroz, who lived with Father as a minor from 1952 to 1970, was exposed to the asbestos fibers on Father's clothes. The Family further contends this exposure eventually caused Quiroz's mesothelioma.

         ¶4 The Family asserts that Reynolds had a duty to protect Quiroz from exposure to take-home asbestos. They contend Reynolds breached this duty by failing to warn Father about the dangers of secondary asbestos exposure. The Family also alleges that Reynolds failed to provide safety equipment to Father and failed to take necessary safety measures to protect Quiroz from such exposure.

         ¶5 Reynolds filed a motion for summary judgment, asserting it owed no duty to Quiroz. The superior court granted Reynolds' motion, and the court of appeals affirmed. Quiroz v. ALCOA Inc., 240 Ariz. 517, 519 ¶ 1 (App. 2016).

         ¶6 We granted review because the Family raises two issues of statewide importance: (1) whether Reynolds owed a duty to Quiroz; and (2) whether Arizona should adopt the duty framework contained in the Third Restatement. We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.



         ¶7 To establish a defendant's liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages. Gipson, 214 Ariz. at 143 ¶ 9; Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985); Ontiveros v. Borak, 136 Ariz. 500, 504 (1983). Whether a duty exists "is a legal matter to be determined before the case-specific facts are considered." Gipson, 214 Ariz. at 145 ¶ 21. As such, we review the existence of duty de novo as a matter of law. Id. at 143 ¶¶ 7, 9.

         A. Foreseeability

         ¶8 Foreseeability is a concept that can be used in different ways to determine tort liability. For many years, Arizona, like most jurisdictions, used foreseeability as a factor in determining duty. A duty based on foreseeability exists when a defendant realizes or should realize that his conduct creates an unreasonable risk of harm to a "foreseeable plaintiff." Rossell v. Volkswagen of Am., 147 Ariz. 160, 164 (1985); Tucker v. Collar, 79 Ariz. 141, 146 (1955), overruled on other grounds by Rosen v. Knaub, 175 Ariz. 329 (1993). A "foreseeable plaintiff" is one who is within the "orbit, " or "zone of danger" created by a defendant's conduct. See Rossell, 147 Ariz. at 164; Tucker, 79 Ariz. at 146; see also Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99-101 (N.Y. 1928) (holding that foreseeability is a factor in determining duty and stating that "the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty").

         ¶9 Foreseeability can also be used to determine whether the defendant breached the relevant standard of care or caused the plaintiff's injury. Gipson, 214 Ariz. at 144 ¶¶ 16-17 (causation); Markowitz, 146 Ariz. at 357 (standard of care); Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984) (standard of care). Unlike duty, applying foreseeability to breach and causation determines whether the injury was foreseeable, and not whether the plaintiff was foreseeable. See Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 544-45 (1990); Markowitz, 146 Ariz. at 356-57.

          ¶10 Prior to Gipson, some Arizona courts limited foreseeability to determining the issue of breach. See Markowitz, 146 Ariz. at 357; Coburn, 143 Ariz. at 51-52. These courts reasoned that applying foreseeability to duty required judges to make fact-specific determinations that encroached on the role of the jury. Markowitz, 146 Ariz. at 357; Coburn, 143 Ariz. at 52. However, despite these cases, foreseeability was widely used to determine the existence of duty, and it remained deeply embedded in the duty framework of this state. See, e.g., Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 187 (1984) ("Duty and liability are only imposed where both the plaintiff and the risk are foreseeable to a reasonable person."); Rager v. Superior Coach Sales and Serv. of Ariz., 111 Ariz. 204, 210 (1974) ("Whether or not there is a duty on the part of the defendant to protect the plaintiff from the injury of which he complains is based on foreseeability."); West v. Cruz, 75 Ariz. 13, 19 (1952) (adopting Palsgrafs foreseeability framework for determining duty); see also Prosser & Keeton, The Law of Torts § 43, at 284-88 (5th ed. 1984) (discussing the adoption of foreseeability to determine duty by most jurisdictions).

         ¶11 In Gipson, this Court expressly held "that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions." 214 Ariz. at 144 ¶ 15. Gipson acknowledged "that our case law has created some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty." Id. (citation and internal quotation marks omitted). However, Gipson concluded that determining "[w]hether an injury to a particular plaintiff was foreseeable by a particular defendant necessarily involves an inquiry into the specific facts of an individual case, " and that "[s]uch factual inquiries are reserved for the jury." Id. ¶ 16.

         ¶12 Thus, Gipson enacted a sea change in Arizona tort law by removing foreseeability from our duty framework. See, e.g., Guerra v. State, 237 Ariz. 183, 185 ¶ 8 (2015) (stating foreseeability is no longer a factor in determining duty); Barkhurst v. Kingsman of Route 66, Inc., 234 Ariz. 470, 475 ¶ 17 (App. 2014) (citing Gipson and stating that foreseeability "is no longer the proper standard for determining duty in Arizona"). Post-Gipson, to the extent our prior cases relied on foreseeability to determine duty, they are no longer valid. See Boisson v. Ariz. Bd. of Regents, 236 Ariz. 619, 622 ¶ 6 (App. 2015) (holding that post-Gipson "foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid"); Delci v. Gutierrez Trucking Co., 229 Ariz. 333, 336 ¶ 11 (App. 2012) (applying Gipson and holding that duty determinations in pre-Gipson cases "premised on a foreseeability analysis" are "no longer valid").

         ¶13 To be clear, in eliminating foreseeability, Gipson changed our duty framework by limiting the duty analysis to special relationships and public policy. Infra ¶ 14. It did not, however, narrow the circumstances in which an actor may be liable for negligent conduct. Additionally, Gipson did not completely remove foreseeability from our negligence framework. Rather, Gipson held that foreseeability may still be used in determining breach and causation. 214 Ariz. at 143, 145 ¶¶ 10, 16-17, 21; see also Vasquez v. State, 220 Ariz. 304, 314 ¶ 33 (App. 2008). Stated another way, Gipson held that while courts may no longer use foreseeability to determine whether a plaintiff is foreseeable (duty), they may still use foreseeability in determining whether the injury is foreseeable (breach and causation). 214 Ariz. at 143-45 ¶¶ 9-10, 15-17, 21; supra ¶¶ 8-9.

         B. Special Relationships and Public Policy

         ¶14 Based on Gipson's elimination of foreseeability, duty in Arizona is based on either recognized common law special relationships or relationships created by public policy. See Guerra, 237 Ariz. at 187 ¶ 20; Gipson, 214 Ariz. at 144-45 ¶¶ 18, 23. Duties based on special relationships may arise from several sources, including special relationships recognized by the common law, contracts, or "conduct undertaken by the defendant." Gipson, 214 Ariz. at 145 ¶¶ 18-19; Restatement (Second) of Torts §§ 314A, 316-19 ("Second Restatement") (discussing duties based on common law special relationships); Second Restatement § 323 (discussing duty based on a negligent undertaking); see also Diaz v. Phx. Lubrication Serv., Inc., 224 Ariz. 335, 339-40 ¶¶ 15-19 (App. 2010) (discussing duty arising from a contract).

         ¶15 Public policy creating a duty is based on our state and federal statutes and the common law. See Gipson, 214 Ariz. at 146 ¶¶ 25-26; cf. Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 232 Ariz. 598, 602 ¶¶ 19-20 (App. 2013) (declining to impose a duty unless "supported by a state statute or a Restatement section"). A statute reflecting public policy may create a duty when a plaintiff "is within the class of persons to be protected by the statute and the harm that occurred . . . is the risk that the statute sought to protect against." Gipson, 214 Ariz. at 146 ¶ 26. Unlike duties based on special relationships, duties based on public policy do not necessarily require preexisting relationships. Id. at 145 ¶ 22. Rather, the statute itself creates a legal relationship between the parties giving rise to a duty. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 42 (1990) ("The relationship that gives rise to a duty of care may also be created by statute.").

         ¶16 To be sure, in a country such as ours with over 300 million people, duties based on public policy are necessary to govern relationships between people who may be legal "strangers." For example, traffic laws give rise to duties regulating conduct between motorists. Evans v. Pickett, 102 Ariz. 393, 397-98 (1967) (discussing duty of motorist, based on a traffic statute, to maintain a reasonable speed to avoid collisions with other motorists), overruled on other grounds by Heimke v. Munoz, 106 Ariz. 26 (1970); Gage v. Kuhlmeier, 132 Ariz. 465, 467 (App. 1982) (discussing duty of motorist, based on a traffic statute, to avoid a collision by yielding the right-of-way). Likewise, criminal laws give rise to duties between members of the public who do not share preexisting relationships. See Gipson, 214 Ariz. at 146 ¶ 26.

          II. A. Duty Based on Public Policy

         ¶17 The Family urges us to recognize a duty in this case by considering various public policy grounds. See, e.g., Bloxham v. Glock, Inc., 203 Ariz. 271, 275-76 ¶¶ 9-12 (App. 2002) (listing multiple public policy factors a court may consider in determining duty); see also Quiroz, 240 Ariz. at 522-23 ¶¶ 23-33 (addressing Bloxham factors raised by the Family to urge the existence of a duty based on public policy grounds). The Family does not, however, cite any state or federal statute giving rise to a duty in this case.[2]

          ¶18 In Arizona, our primary source for identifying a duty based on public policy is our state statutes. See Gipson, 214 Ariz. at 146 ¶¶ 25-26; see also Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 253, 255-56 (1994) (holding that statutes proscribing underage drinking give rise to a duty by non-licensees to refrain from furnishing alcohol to minors); Brannigan v. Raybuck, 136 Ariz. 513, 516-17 (1983) (stating that statutes barring minors from consuming alcohol create a duty prohibiting liquor licensees from furnishing alcohol to minors); Cobb v. Salt River Valley Water Users' Ass'n, 57 Ariz. 451, 456-57 (1941) (noting a local ordinance gave rise to a duty by adjacent property owners to avoid discharging water on public sidewalks); Estate of Maudsley v. Meta Servs., Inc., 227 Ariz. 430, 435-37 ¶¶ 16-22 (App. 2011) (stating that mental health statutes give rise to a duty by mental health facilities to screen, evaluate, and treat individuals who may be in need of mental health services). We have also recognized that local ordinances may give rise to a public policy duty. Thomas v. Baker Family Tr., 191 Ariz. 187, 188 (App. 1997) (stating that while a property owner has no common law duty to repair a sidewalk adjacent to his property, "such a duty may be imposed by statute or city ordinance").

         ¶19 This litany of cases demonstrates that, in the absence of a statute, we exercise great restraint in declaring public policy. As we stated in Ray v. Tucson Medical Center, 72 Ariz. 22, 35-36 (1951):

The declaration of "public policy" is primarily a legislative function. The courts unquestionably have authority to declare a public policy which already exists and to base its decisions upon that ground. But in the absence of a legislative declaration of what that public policy is, before courts are justified in declaring its existence such public policy should be so thoroughly established as a state of public mind, so united and so definite and fixed that its existence is not subject to any substantial doubt.

Cf Stanley v. McCarver, 208 Ariz. 219, 227-28 ¶ 33 (2004) (Jones, C.J., dissenting) (stating that in recognizing tort duties, we must "allow the legislature to define the public policy of the state"); Local 266, Int'l Bhd. Of Elec. Workers, A. F. of L. v. Salt River Project Agric. Improvement & Power Dist., 78 Ariz. 30, 40-41 (1954) ("We have said that statements of public policy must be made by the people through the legislature.")

         ¶20 We have also recognized public policy giving rise to a duty based on the common law - specifically, case law and Restatement sections consistent with Arizona law. Supra ¶¶ 14-15. However, reliance on the common law does not mean that this Court establishes duties based on our own notions of appropriate public policy. Thus, even in those cases where we have mentioned "social concerns" in relation to tort duties, we have ultimately premised the existence of a duty on a statute or a recognized special relationship. See, e.g., Stanley, 208 Ariz. at 226 ¶ 22 (stating that duties "emanate from [a] panoply of social concerns, " but basing duty on negligent undertaking); Ontiveros, 136 Ariz. at 508 (noting that duty is based on the "sum total" of policy considerations, but basing the existence of duty on a statute and the special relationship between liquor licensees and their customers).

         ¶21 Accordingly, we conclude the Family has failed to identify a valid public policy creating a legal relationship giving rise to a duty.

         B. Duty Based on a Special Relationship

         ¶22 There is no dispute that Reynolds, as Father's employer, owed a duty of care to Father. See Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 34 (App. 1994) (noting a duty exists based on the employer-employee special relationship); Second Restatement § 314B (same). Rather, the Family argues there was a special relationship between Reynolds and any member of the public, including Quiroz, who may have been exposed to secondary asbestos.

         ¶23 We reject this argument because there is no legally recognized special relationship giving rise to a duty between Reynolds and Quiroz. Quiroz did not have an employer-employee relationship with Reynolds, and there is no allegation that Reynolds created a special relationship with Quiroz based on a contract or a negligent undertaking. See supra ¶ 14. Additionally, Reynolds and Quiroz shared no relationship as landowner-invitee or landowner-licensee. Quiroz suffered no injury on Reynolds' property, nor was he injured while entering or leaving Reynolds' property. See Wickham v. Hopkins, 226 Ariz. 468, 471, 472 ¶¶ 11, 17-18 (App. 2011) (explaining landowner's duties to licensees and invitees); Second Restatement §§ 318, 341-43 (same).

         ¶24 Even so, both the Family and the dissent argue that landowners such as Reynolds owe a general duty of care to the public for off-premises injuries. Specifically, they claim that Reynolds owes a duty of care to anyone who is injured by its "risk-creating conduct, " "even when the harm occurs off-premises." See infra ¶¶ 95, 110.

         ¶25 The general duty proposed by the Family and the dissent surpasses the bounds of Arizona law. While our case law recognizes that landowners may, in some circumstances, owe a duty of care for off-premises injuries, it does not support the Family's far more sweeping claim that landowners owe a general duty to the public for off-premises injuries.[3]Indeed, none of the authorities cited by the Family or the dissent support the existence of such a broad duty.

         ¶26 The Family's reliance on Udy v. Calvary Corp., 162 Ariz. 7 (App. 1989), for the existence of a general off-premises duty is misplaced. In Udy, a tenant rented an unfenced trailer space next to a busy street. Id. at 9-10. The tenant had small children and sought permission from the landlord to erect a fence to prevent her children from running into the street. Id. The landlord denied the request. Id. Later, one of the tenant's children ran into the street and was seriously injured when he was struck by a car. Id. The tenant sued the landlord for her child's injuries. Id. The landlord filed a motion for summary judgment, claiming he had no duty to protect tenants from dangers outside his property. Id. at 10-11. The superior court granted the motion. Id.

         ¶27 The court of appeals reversed, stating that the location of the injury was not a factor in determining the existence of a duty. Id. at 11. Rather, the court held that duty was based on the parties' special relationship as landlord-tenant. Id. at 10-13. In contrast, whether the landlord was liable for injuries occurring outside his property concerned the relevant standard of care, i.e., the reasonable precautions the landlord was required to take for the safety of his tenants. Id. at 10-13; see also Stephens v. Bashas' Inc., 186 Ariz. 427, 430-31 (App. 1996) (holding that duty was based on landowner-invitee relationship, and the fact plaintiff was injured outside defendant's premises was relevant to breach/standard of care, not duty).

         ¶28 Udy has no application here. Of course, if a special relationship exists between a landowner and an injured plaintiff, a duty exists even if the injury occurs off-premises. Udy, 162 Ariz. at 9-10; see also Engler v. Gulf Interstate Eng'g, Inc., 230 Ariz. 55, 57 ¶ 9 (2012) (noting that an employer/landowner is vicariously liable for off-premises injuries caused by the negligence of its employee); Wickham, 226 Ariz. at 471, 472 ¶¶ 11, 17-18 (discussing duty owed by landowners to business invitees for off-premises injuries); Stephens, 186 Ariz. at 430-31 (holding that a landowner owes a duty to business invitees to provide safe ingress and egress from his property). But here, the parties do not share a landlord-tenant relationship; indeed, the Family has not alleged the existence of any recognized special relationship.

         ¶29 The Family next contends that Burns v. Jaquays Mining Corp., 156 Ariz. 375 (App. 1987), "implicitly" recognizes a duty of care owed by landowners who release airborne asbestos fibers onto neighboring properties. The Family asserts that Burns, by extension, gives rise to a duty owed by Reynolds to protect the public from secondary exposure to asbestos. We disagree.

         ¶30 In Burns, the defendant landowner owned an asbestos mill. The asbestos fibers and waste from the mill blew into a neighboring trailer park. Id. at 376. The amount of airborne asbestos blown into the trailer park was substantial; the governor declared the park a disaster area, and steps were taken to relocate the residents. Id.

         ¶31 The residents eventually filed claims against the mill for negligence, gross negligence, strict liability, and nuisance, alleging their exposure to airborne asbestos increased their risk of developing asbestos-related diseases in the future. Id. at 377. The owner of the mill filed a motion for summary judgment, which the superior court granted, dismissing all the residents' claims except for their property damage claim. Id.

         ¶32 The court of appeals affirmed the superior court's grant of summary judgment as to the residents' negligence claim. Id. at 377, 381. The court held that the residents had no cognizable negligence claim because the risk of future injuries was insufficient to prove the requisite element of "actual loss or damage[s]." Id. at 376; see also Markowitz, 146 Ariz. at 356 (stating proof of actual damages is an element of a negligence claim).

         ¶33 However, Burns reversed the trial court's dismissal of the residents' nuisance claim. Burns concluded that, based on Ayers v. Twp. of Jackson,525 A.2d 287, 294, 300-01 (N.J. 1987), the medical costs associated with monitoring the residents' subclinical injuries was recoverable in the context of a nuisance claim. Burns, 156 Ariz. at 379-81; see also Ayers, ...

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