Arizona Supreme Court rules company not liable for ‘take-home’ asbestos

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.

Arizona companies have no duty to protect family members from exposure to toxic materials their employees bring home on their work clothes, the Arizona Supreme Court ruled Friday.

In the first ruling of its kind in Arizona, a majority of the justices rejected arguments by survivors of Ernest Quiroz that Reynolds Metal Co. should be held legally responsible for his mesothelioma, a form of cancer frequently associated with asbestos exposure, and his eventual death. Justice Andrew Gould, writing for himself and four other justices, said the company owed no duty to protect anyone other than its own employees, with which it had a special relationship.

And Gould said the mere fact that an injury to others might be foreseeable is not, by itself, enough to hold the company liable.

That conclusion drew a stinging dissent from Chief Justice Scott Bales.

“Although the employer created the risk of physical harm — and failed to warn its employees or the persons ultimately injured — the majority concludes that the employer must be immunized from even the prospect of liability, no matter how reckless or otherwise unreasonable its conduct may have been,” Bales wrote for himself and Justice John Pelander. “One would think the children had a greater right to be free from others unreasonably exposing them to risks of debilitating and life-threatening illness.”

Court records show Quiroz lived in his father’s house in Maricopa County from 1952 to 1966, during which time his father worked for Reynolds Metal. Quiroz moved to California in 1966 for a decade and then Michigan until his death in 2014.

In the lawsuit, survivors claim that Quiroz’s father was exposed on numerous occasions to asbestos-containing products and machinery. That, the claim says, resulted in the release of respirable asbestos fibers which contaminated the employee’s clothing, tools, car, body and general surroundings.

The result, the survivors say, is that Quiroz breathed these fibers as a result of direct and indirect contact with those items.

Attorneys for the family argued that Reynolds, which has since merged with Alcoa and now operates under that name, had a duty to avoid creating hazardous conditions on its property that would cause injury to people off the property.

Gould, however, said there are several problems with that theory. And they all come down to the court’s conclusion that Reynolds, as the employer, had no legal duty to avoid harm to Quiroz.

He said a duty can be created if there is a “special relationship” between the company and the person that was injured.

“Quiroz did not have an employer-employee relationship with Reynolds, and there is no allegations that Reynolds created a special relationship with Quiroz based on a contract or a negligent undertaking,” Gould wrote.

Bales, however, said the issue is not that simple. He said that landowners like Reynolds owe a “general duty of care” to anyone who is injured by its “risk-creating conduct,” even when that harm occurs off premises.

But Gould said that isn’t the law in Arizona.

He acknowledged a 1987 Supreme Court ruling against the owner of an asbestos mill in a situation where fibers and waste from the mill blew into a neighboring trailer park. In that case, the amount of asbestos blown onto the property was “substantial,” the governor declared the park a disaster area, and steps were taken to relocate the residents.

In this case, however, the family of Quiroz is not alleging that Reynolds created that kind of nuisance. More to the point, Gould said, the ruling in that case addressed damages to the residents of the trailer park, not whether the owner of the mill had a duty to protect them.

“It simply affirmed the well-established rule that when a landowner creates a nuisance that physically intrudes upon another person’s property, it may be liable for the damages caused by the nuisance,” Gould wrote.

Bales, however, said that misses the point. He said the allegation is that the company operated in a manner of exposing its workers without warning to toxic asbestos dust and failing to provide workplace measures which resulted in that dust ending up beyond the facility.

“Reynolds failed to even warn its workers, much less afford them a means to prevent their carrying home asbestos dust in their clothing,” he said.

“Thus, the determination of liability should not turn on whether the injury was caused by wind-borne asbestos, employee-borne asbestos, or an errant fly ball,” Bales wrote. “A landowner owes a duty of care when it exposes others to risks of injury, even when the harm occurs off premises.”

Gould acknowledged that courts in some other states have recognized a duty in what amount to “take-home asbestos cases.”

That includes a case won by Michael Gurien who represented the family in this case. He got a ruling two years ago by the California Supreme Court which said employers have “a duty to take reasonable care” to prevent the transmission of asbestos dust “where it is reasonably foreseeable that works, their clothing, or personal affects” will carry the dust from the premises to household members.

But Gould said that ruling and others are based on the foreseeability of the injury, something that is not considered in Arizona when determining if someone has a duty not to injure another person.

Gurien did not immediately return calls seeking comment on Friday’s ruling.