Arizona Supreme Court Rejects “Generalized Duty,” Consequences May Follow
Arizona Rejects Section 7 of the Restatement (Third) of Torts, Which Creates Presumption of Duty, Shifting the Burden to Defendants to Show Absence of Duty
Section 7(a) of the Restatement (Third) of Torts (“Third Restatement”), states that “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” This presumed duty relieves the plaintiff of the burden of proving duty, and requires the defendant to show that, based on some “countervailing principle or policy,” a no duty rule should apply to its case. Third Restatement § 7(b);
see also id. Reporter’s Note to cmt. b (stating the “burden” of pleading a no duty rule is on the defendant). The “risk creation” element of this concept is so broadly defined that it virtually creates a duty anytime a plaintiff is injured by the defendant.
See Quiroz et al. v. ALCOA Inc., et al., CV 16 0248 PR at ¶¶ 54–58 (Ariz. S.C. May 11, 2018). Practically speaking, § 7 eliminates the possibility of summary judgment for a defendant based on the absence of duty.
On May 11, 2018, in Quiroz et al. v. ALCOA Inc., et al., the Arizona Supreme Court rejected § 7, confirming that Arizona does not recognize a “presumed” duty in negligence cases. CV 16 0248 PR at ¶ 1. The Court’s opinion has broad implications in asbestos litigation and general negligence claims alike.
Quiroz et al. v. ALCOA Inc., et al., CV 16 0248 PR (Ariz. S.C. May 11, 2018)
The Estate of Ernest Quiroz brought a “take home exposure” claim against Reynolds Metal, Company, ALCOA, Inc. Specifically, the Estate alleged that Quiroz’s mesothelioma arose not because Quiroz himself worked with asbestos, but because his father worked with asbestos at Reynolds and carried asbestos fibers home on his clothing, where Quiroz was exposed to them. The Estate, therefore, claimed that Reynolds was liable to it for Quiroz’s disease and death.
Reynolds successfully moved for summary judgment, asserting that it had no duty to Quiroz. The Court of Appeals affirmed this decision and the Arizona Supreme Court accepted review to determine: “(1) whether Reynolds owed a duty to Quiroz; and (2) whether Arizona should adopt the duty framework contained in the Third Restatement.” Quiroz, CV 16 0248 PR at ¶ 6.
The Arizona Supreme Court answered no to both questions. It clarified that “duty is not presumed; in every negligence case, the plaintiff bears the burden of proving the existence of a duty” through the framework laid out in Gipson v. Kasey, 214 Ariz. 141, 144 ¶ 15 (2007). Id. at ¶ 2. Specifically, duty must be based on either a special relationship or public policy. Id. Special relationships or public policy may be found in statutes or the common law. Id. Accordingly, foreseeability and case specific facts play no part in assessing whether a duty exists in a given case. Id. at ¶¶ 8–13. In severing the two elements, the Court implicitly rejected sections of the Restatement (Second) of Torts that conflate foreseeability and duty. Id. at ¶ 41.
Likewise, the Court expressly rejected the “presumed duty” embodied in the Third Restatement. Id. at ¶ 2. In doing so, it took care to limit the scope of stray language in previous opinions like Ontiveros v. Borak, 136 Ariz. 500, 509 (1983), which suggested that “every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others.” Id. at ¶¶ 64–73. Instead, the Court emphasized that the plaintiff must prove a duty exists under the framework laid out in laid out in Gipson v. Kasey.
Quiroz Curtails Take-Home Exposure Litigation in Arizona
Quiroz’s impact on asbestos litigation is obvious. It provides the framework that would allow defendants to successfully move for summary judgment in factually similar cases. The Arizona Supreme Court’s rejection of section § 7 and finding that Reynolds owed no duty to Quiroz for secondary exposure to asbestos is consistent with decisions in a number of other jurisdictions.1 In contrast, jurisdictions that have recognized a duty in take home asbestos cases have relied on foreseeability, a factor that is not considered in Arizona when determining duty.2
Because courts across the country are currently struggling with how to address secondary exposure cases, and whether to adopt the broader duty recognized in § 7 of the Third Restatement, Quiroz could have a broader impact nationwide. Few states have addressed whether a duty exists in take-home exposure cases. The Quiroz reasoning can be used to help courts struggling to understand this complex topic and help advocates frame the issue. The Quiroz decision will be particularly helpful in states that separate foreseeability from duty and those that do not recognize a “generalized” or “presumed duty,” and should be used to help shape the law in states where the precedent remains undeveloped.
Quiroz is Not Limited to Asbestos, but Extends to General Negligence Claims
Although Quiroz is an asbestos case, its duty analysis extends to all negligence claims. In Quiroz, the Court made clear that foreseeability has no role in duty analysis, expressly stating that its 2007 decision in Gipson v. Kasey in was intended as a “sea change in Arizona tort law by removing foreseeability from our duty framework.” Quiroz, CV 16 0248 PR at ¶ 12. The Gipson Court made clear that “[t]he issue of duty is not a factual matter; it is a legal matter to be determined before the case specific facts are considered.” Gipson, 214 Ariz. at 145 ¶ 21. Yet, a footnote in Gipson also “noted that ‘every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others.’” Id. at 146 ¶ 24 (quoting Ontiveros, 136 Ariz. at 509) (internal citations omitted). Because Gipson retained, at least to some degree, the idea that Arizona recognizes a generalized duty, lower courts have largely been unwilling to consider summary judgment motions brought on the issue of duty. Quiroz brings clarity, expressly rejecting the Restatement (Third) and implicitly rejecting portions of the Restatement (Second), to leave no doubt that plaintiffs in negligence cases have the burden to show the existence of duty and may not rely on a presumption of a generalized duty to meet this burden.
For more information, please find the full opinion of the Arizona Supreme Court here.
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1. See, e.g., Riedel v. ICI Ams. Inc., 968 A.2d 17, 23 (Del. 2009) (finding no duty to protect an employee’s daughter from secondary exposure to asbestos because there was no special relationship between employer and daughter); CSX Transp., Inc. v. Williams, 608 S.E.2d 208, 210 (Ga. 2005) (holding that an employer/landowner had no duty to non-employee family members who were exposed to take-home asbestos); Palmer v. 999 Que., Inc., 874 N.W.2d 303, 309–10 ¶¶ 14–17 (N.D. 2016) (holding that employer had no duty to protect an employee’s family member from take-home asbestos because there was no special relationship between the family member and the employer).
2. See, e.g., Kesner v. Superior Court, 384 P.3d 283, 290–91, 299 (Cal. 2016) (holding that an employer has a duty for take home asbestos based on Cal. Civ. Code § 1714 and California case law, which provide that foreseeability is an “important factor” in determining duty); Schwartz v. Accuratus Corp., 139 A.3d 84, 88–89, 92 (N.J. 2016) (recognizing duty based on foreseeability); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 362–63 (Tenn. 2008) (finding duty employing Third Restatement and foreseeability analysis); cf. Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1098–99 ¶¶ 21, 27–28 (Ill. 2012) (remarking that foreseeability is “an integral factor to the existence of duty”); see also Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 444–47, 446 n.4 (6th Cir. 2009) (holding that there was no duty for an employer to warn a family member regarding take home asbestos under Kentucky law or Restatement Second § 371 because the family member was not a foreseeable plaintiff).