Ernest V. Quiroz and Mary Quiroz, husband and wife, Plaintiffs/Appellants,
ALCOA Inc., et al., Defendants/Appellees. v.
from the Superior Court in Maricopa County The Honorable
Sally Schneider Duncan, Judge No. CV2013-009160 AFFIRMED
of the Court of Appeals, Division One 240 Ariz. 517 (App.
Rosenblatt, Ely Bettini Ulman & Rosenblatt, Phoenix;
Michael B. Gurien (argued), Waters, Kraus & Paul, El
Segundo, CA, Attorneys for Ernest V. Quiroz and Mary Quiroz
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.
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
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,
Christopher Robbins, Hill, Hall & DeCiancio, PLC,
Phoenix, Attorney for Amicus Curiae Arizona Association of
E. Kelly, Jr., K&L Gates LLP, Seattle, WA, Attorney for
Amicus Curiae Chamber of Commerce of the United States of
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
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
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.
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.
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.
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
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.
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,
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
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).
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.
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").
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 ¶¶
Special Relationships and Public Policy
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
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.").
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 ¶
II. A. Duty Based on Public Policy
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.
¶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
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
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).
Accordingly, we conclude the Family has failed to identify a
valid public policy creating a legal relationship giving rise
to a duty.
Duty Based on a Special Relationship
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.
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).
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.
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.Indeed, none of the authorities cited by
the Family or the dissent support the existence of such a
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.
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).
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.
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.
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.
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.
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
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, ...