Arizona Holds No Duty by Manufacturer in Secondary Asbestos Exposure Case

The Arizona Supreme Court recently held that a defendant that used asbestos materials in its workplace before 1970 has no duty to protect the public from secondary asbestos exposure. Arizona only recognizes a duty in a negligence claim if a special relationship exists between the parties under common law or if a special relationship is created by public policy.

Quiroz v. Alcoa affirmed the trial court’s ruling that the defendant owed no duty to Ernest Quiroz, who died of mesothelioma. Mr. Quiroz’s father worked in the defendant’s plant and was allegedly exposed there to asbestos fibers. Mr. Quiroz claimed that his father carried the asbestos fibers home from the plant on his work clothes, exposing Ernest Quiroz to the asbestos fibers and causing his mesothelioma decades later.

On a negligence claim, Arizona courts do not presume the existence of a duty. Foreseeability is not a factor in determining whether a duty exists. Foreseeability is a factor in determining fact issues of breach and causation, such as whether an injury was foreseeable. Duty only arises from a special relationship in common law or from a relationship created by public policy.

Foreseeability is Not Relevant in Determining Duty

The Arizona Supreme Court’s prior opinion in Gipson v. Kasey held that Arizona no longer considers foreseeability in evaluating duty. Quiroz reaffirmed this holding. The jury may consider foreseeability only in determining injury and causation, not duty.

Special Relationships and Public Policy-Based Relationships Are the Only Sources of Duty in Arizona

Arizona only recognizes a duty in a negligence context if the duty is derived from “recognized common law special relationships or relationships created by public policy.” Recognized special relationships include employer-employee, landowner-invitee, landowner-licensee relationship, or a contractual relationship. Public policy-based duties are created by statute or local ordinance. Statutes that create relationships giving rise to duties include traffic laws and criminal laws. Quiroz cautioned that courts should be reluctant to find a duty based on public policy in the absence of a corresponding statute.

The Arizona Supreme Court Rejected the Third Restatement’s “Risk Creation” Duty Framework

The Third Restatement imposes a duty on a defendant when the defendant “creates a risk of harm to a plaintiff” and shifts the burden of duty to the defendant, who must prove that no duty should apply. Quiroz rejected that “risk creation” theory of duty because “risk creation” is vague and could include “any conduct that might possibly increase the risk of harm.”  The Arizona Supreme Court recognized that “risk creation” would impose limitless liability on defendants for injuries to “both foreseeable plaintiffs and unforeseeable plaintiffs who may or not be within the ‘zone of danger.’”

The Court reaffirmed that Arizona analyzes whether a duty exists “before a defendant, by his acts or omissions, places a plaintiff at risk of physical injury.” Arizona courts will only consider the defendant’s actions if the plaintiff establishes first that the defendant owed her or him a duty of care. Because Arizona does not presume a duty, this burden rests solely on the plaintiff.

*Jessica Kemper is a summer associate at Snell & Wilmer and will be a third-year law student at the Sandra Day O’Connor School of Law at Arizona State University.

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