PHOENIX (Legal Newsline) - Arizona has joined the list of states refusing to allow claims for what's called "take-home" asbestos exposure.
In the Arizona Court of Appeals' decision in Quiroz v. Alcoa Inc., issued in September, the court affirmed a trial court's ruling granting an asbestos defendant's motion for summary judgement in a case in which the plaintiffs alleged their decedent contracted mesothelioma from repeat exposure to asbestos fibers brought home on his father's clothing.
His father allegedly worked with asbestos-containing products at the defendant’s factory, resulting in a claim known as "take-home" exposure.
But the court found that a premises owner has no duty to the child of an employee in such a "take-home" asbestos exposure case. In fact, the court distinguished Arizona law from other states in that it doesn't consider foreseeability of injury in determining whether a defendant owes a plaintiff a duty of care, said Dennis Dobbels, attorney with Polsinelli PC.
Dobbels said the court also declined to apply the interpretation in a Restatement of Torts, specifically sections 371 and 54, because such an application would change Arizona's long-standing approach to negligence law by effectively eliminating duty as one of the required elements of a negligence claim.
"The court also rejected the plaintiff's argument that finding no duty in 'take-home' cases would violate public policy considerations," Dobbels told Legal Newsline.
"In doing so, the court expressed concern over the potential for limitless liability for defendants."
However, Dobbels said it seems that the court invited the plaintiff to appeal, noting that it was following prior precedent and any changes would need to be made by the Arizona Supreme Court.
"So one can conclude that the court itself is inviting the plaintiff to appeal to determine whether the Arizona Supreme Court would continue to follow its past policies on determination of duty," he said.
"While it might not seem fair to those who have allegedly obtained mesothelioma in a 'take-home' situation, fairness is something determined based upon the law of the jurisdiction.
"It would be unfair for a court to, out of hope, create new law on which everyone has relied in the past for how they conduct their business and personal affairs. So when we look at fairness, it’s a prison we all have and it’s going to be based on our moral standards."
Dobbels said it will be interesting to see how other courts will rule in these types of cases going forward.
"The court identified two trends. One is that those saying foreseeability is an important component for determining duty and those states that do not. It’ll be interesting to see where the trend goes at this point," he said.
As far as how this will impact asbestos attorneys' attempts to assist clients in Arizona, Dobbels said that remains to be seen, too.
"The reason is choice-of-law issues. It’s important for a court to decide whose law applies even if someone is an ‘Arizona’ injured person," he said.
"The law of another state might still apply to their case depending upon circumstances of exposure, like where the company is, where the defendant resides - all those things will play a role in determining whether Arizona law should apply. So it could have an impact, but it may not necessarily be fatal to someone who is an Arizona plaintiff."