In re Quiroz

416 P.3d 824

Ernest V. QUIROZ and Mary Quiroz, husband and wife, Plaintiffs/Appellants,

v.ALCOA INC., et al., Defendants/Appellees.

No. CV-16-0248-PR

Supreme Court of Arizona.

Filed May 11, 2018

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.

JUSTICE GOULD, opinion of the Court:

¶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, 150 P.3d 228, 231 (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.

BACKGROUND¹

¶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, 382 P.3d 75, 77 (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.

DISCUSSION

I.

¶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, 150 P.3d at 230 ; Markowitz v. Ariz. Parks Bd. , 146 Ariz. 352, 356, 706 P.2d 364, 370 (1985) ; Ontiveros v. Borak , 136 Ariz. 500, 504, 667 P.2d 200, 204 (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, 150 P.3d at 232. As such, we review the existence of duty de novo as a matter of law. Id. at 143 ¶¶ 7, 9, 150 P.3d at 230.

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, 709 P.2d 517, 521 (1985) ; Tucker v. Collar , 79 Ariz. 141, 146, 285 P.2d 178, 183 (1955), overruled on other grounds by Rosen v. Knaub , 175 Ariz. 329, 857 P.2d 381 (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, 709 P.2d at 521 ; Tucker , 79 Ariz. at 146, 285 P.2d at 183 ; see also Palsgraf v. Long Island R.R. Co. , 248 N.Y. 339, 162 N.E. 99, 99–101 (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, 150 P.3d at 231 (causation); Markowitz , 146 Ariz. at 357, 706 P.2d at 369 (standard of care); Coburn v. City of Tucson , 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (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, 789 P.2d 1040, 1045–46 (1990) ; Markowitz , 146 Ariz. at 356–57, 706 P.2d at 368, 369.

¶10 Prior to Gipson , some Arizona courts limited foreseeability to determining the issue of breach. See Markowitz , 146 Ariz. at 357, 706 P.2d at 369 ; Coburn , 143 Ariz. at 51–52, 691 P.2d at 1079–80. 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, 706 P.2d at 369 ; Coburn , 143 Ariz. at 52, 691 P.2d at 1080. 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, 677 P.2d 1292, 1295 (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, 526 P.2d 1056, 1062 (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, 251 P.2d 311 (1952) (adopting Palsgraf’s 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, 150 P.3d at 231. 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, 348 P.3d 423, 425 (2015) (stating foreseeability is no longer a factor in determining duty); Barkhurst v. Kingsmen of Route 66, Inc. , 234 Ariz. 470, 475 ¶ 17, 323 P.3d 753, 758 (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...