Quiroz v. Alcoa Inc.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ERNEST V. QUIROZ and MARY QUIROZ, husband and wife,
Plaintiffs/Appellants,
v.
ALCOA INC., et al., Defendants/Appellees.
No. 1 CA-CV 15-0083
FILED 9-20-2016
Appeal from the Superior Court in Maricopa County
No. CV2013-009160
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
COUNSEL
Ely Bettini Ulman & Rosenblatt, Phoenix
By Burton Rosenblatt
Co-Counsel for Plaintiffs/Appellants
Water Kraus & Paul, El Segundo, CA
By Paul C. Cook, Michael B. Gurien
Co-Counsel for Plaintiffs/Appellants
Gordon & Rees LLP, Phoenix
By Molly C. Machold, Mark Tuvim
Co-Counsel for Defendants/Appellees
Hawkins Parnell Thackston & Young LLP, Dallas, TX
By Edward M. Slaughter
Co-Counsel for Defendants/Appellees
Righi Fitch Law Group PLLC, Phoenix
By Elizabeth Savoini Fitch
Counsel for Amicus Curiae Coalition for Litigation Justice, Inc.
OPINION
Judge Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Peter B. Swann joined.
T H O M P S O N, Judge:
¶1 We are asked to decide as a matter of first impression whether
an employer owes a duty of care to the child of an employee who contracts
mesothelioma from asbestos brought home on the employee’s work
clothes. These cases are commonly known as “take-home exposure” cases.
See, e.g., Mark A. Behrens, What's New in Asbestos Litigation?, 28 Rev.
Litig. 501, 546 (2009). We find no duty of care arises and, therefore, affirm
the trial court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Because Appellants challenge a grant of summary judgment
against them, we recite the facts in the light most favorable to them.
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).
¶3 Ernest V. Quiroz (Dr. Quiroz) lived in his father’s house from
1952 to 1966. During that time, his father worked for Reynolds Metal
Company (Reynolds). Dr. Quiroz left home to attend school in California
in 1966, and continued to reside in California until 1976. Dr. Quiroz resided
in Michigan from 1976 until his death in 2014.
¶4 Appellants allege Dr. Quiroz was exposed to asbestos on his
father’s work clothes during the years he lived in his father’s house. Dr.
Quiroz was diagnosed with mesothelioma, a form of cancer frequently
associated with asbestos exposure, in 2013. Appellants alleged Reynolds
was negligent because
[Dr. Quiroz’s] father . . . had been exposed, on numerous
occasions, to asbestos-containing products and machinery
requiring or calling for the use of asbestos or asbestos-
containing products or products which caused the release of
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Opinion of the Court
respirable asbestos fibers . . . and, in so doing, his clothing,
tools, car, body and general surroundings were contaminated
with great quantities of asbestos fibers. [Dr. Quiroz] breathed
these asbestos fibers as a result of direct and indirect contact
with his father’s clothes, tools, car and general surroundings.
Appellants amended their complaint to allege wrongful death when Dr.
Quiroz passed away in October 2014.
¶5 Reynolds moved for summary judgment, arguing that it did
not owe Dr. Quiroz a duty of care. The trial court granted the motion,
finding Reynolds “had no duty to Plaintiffs as a matter of law.” Appellants
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) § 12-2101(A)(1) (2016).
DISCUSSION
¶6 To establish a negligence claim, a plaintiff must prove four
elements: (1) a duty requiring the defendant to conform to a certain
standard of care, (2) the defendant’s breach of that standard, (3) a causal
connection between the defendant's conduct and the resulting injury, and
(4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228,
230 (2007). “The first element, whether a duty exists, is a matter of law for
the court to decide.” Id. We review the trial court’s duty ruling de novo.
Bloxham v. Glock, Inc., 203 Ariz. 271, 274, ¶ 6, 53 P.2d 196, 199 (App. 2002).
¶7 Duty is defined as an “obligation, recognized by law, which
requires the defendant to conform to a particular standard of conduct in
order to protect others against unreasonable risks of harm.” Gipson, 214
Ariz. at 143, ¶ 10, 150 P.3d at 230 (quoting Markowitz v. Ariz. Parks Bd., 146
Ariz. 352, 354, 706 P.2d 364, 366 (1985)). Whether a defendant owes the
plaintiff a duty of care is a “threshold issue;” absent a duty of care, there
can be no viable claim for negligence. Id. at 143, ¶ 11, 150 P.3d at 230.
¶8 Whether a defendant owes a plaintiff a duty of care does not
turn on the foreseeability of injury. Barkhurst v. Kingsmen of Route 66, Inc.,
234 Ariz. 470, 472, ¶ 10, 323 P.3d 753, 755 (App. 2014). In determining
whether a duty exists, we do not undertake a fact-specific analysis, nor do
we look at the parties’ specific actions. Boisson v. Ariz. Bd. of Regents, 236
Ariz. 619, 623, ¶ 11, 343 P.3d 931, 935 (App. 2015). A duty “may arise from
the relationship between the parties or, alternatively, from public policy
considerations.” Id. at 622, ¶ 7, 343 P.3d at 934. We consider both possible
duty sources below.
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I. There Was No Special or Categorical Relationship Between Dr.
Quiroz and Reynolds.
¶9 A duty of care may arise from a special relationship based on
contract, family relations, or conduct undertaken by the defendant, or may
be based on categorical relationships recognized by the common law, such
as landowner-invitee. Delci v. Gutierrez Trucking Co., 229 Ariz. 333, 336, ¶
12, 275 P.3d 632, 635 (App. 2012).
¶10 Appellants do not contend Reynolds and Dr. Quiroz had
either a special or categorical relationship.1 Appellants instead argue
Reynolds owed a duty to avoid creating hazardous conditions on its
property that would cause injury to persons off the property under
Restatement (Third) of Torts § 54(a) and Restatement (Second) of Torts §
371. Generally, we will follow the Restatement if we deem it good legal
authority, but will reject it where “Arizona law suggests otherwise.” Powers
v. Taser Int'l, Inc., 217 Ariz. 398, 403, ¶ 19, 174 P.3d 777, 782 (App. 2007).
Here, Arizona law does suggest otherwise, as noted below.
A. Restatement (Third) § 54.
¶11 Restatement (Third) § 54(a) imposes a duty of reasonable care
on possessors of land “for artificial conditions or conduct on the land that
poses a risk of physical harm to persons or property not on the land.” The
parties cite no Arizona case law interpreting § 54, nor are we aware of any.
¶12 According to the official comments, § 54 is a “special
application of [Restatement (Third)] § 7.” Restatement (Third) § 54, cmt. b.
Restatement (Third) § 7 states, in relevant part, that “[a]n actor ordinarily
has a duty to exercise reasonable care when the actor’s conduct creates a
risk of physical harm,” and imposes a general duty of reasonable care on
all persons. Restatement (Third) § 7(a); see also Gipson, 214 Ariz. at 147, ¶
34, 150 P.3d at 234 (Hurwitz, J., concurring) (noting that, under § 7, courts
would “view the duty of reasonable care as the norm”).
1 Other courts that have considered “take-home exposure” cases have
found no special relationship between an employer and its employees’
family members. See, e.g., Gillen v. Boeing Co., 40 F. Supp. 3d 534, 538 (E.D.
Pa. 2014) (finding that an employer and an employee’s spouse who
contracted mesothelioma due to take-home exposure were “legal
strangers” under the law of negligence); Adams v. Owens-Illinois, Inc., 705
A.2d 58, 66 (Md. Ct. App. 1998) (finding that employer and employee’s
spouse were “strangers” in a take-home exposure case).
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¶13 We have previously declined to adopt the general duty of care
proposed by § 7, finding that doing so would
substantially change Arizona’s longstanding conceptual
approach to negligence law by effectively eliminating duty as
one of the required elements of a negligence action. . . . The
Third Restatement approach significantly lessens the role of
the court as a legal arbiter of whether society should
recognize the existence of a duty in particular categories of
cases; for this reason, adopting the Third Restatement would
increase the expense of litigation.
Delci, 229 Ariz. at 338, ¶ 18, 275 P.3d at 637; see Alcombrack v. Ciccarelli, 238
Ariz. 538, 542, ¶ 11, 363 P.3d 698, 702 (App. 2015). We see no reason to
adopt § 54’s “special application” of that same duty. See Hafner v. Beck, 185
Ariz. 389, 391, 916 P.2d 1105, 1107 (App. 1995) (“We do not understand the
law to be that one owes a duty of reasonable care at all times to all people
under all circumstances.”).
¶14 Appellants also point to Ontiveros v. Borak, where our
supreme court stated in dicta that “every person is under a duty to avoid
creating situations which pose an unreasonable risk of harm to others.” 136
Ariz. 500, 509, 667 P.2d 200, 209 (1983). We distinguished this statement in
Delci, noting that the Ontiveros holding hinged on “the relation of the
licensed supplier of liquor and his patron requiring the licensee to take
affirmative measures to control or avoid increasing the danger from the
conduct of others,” a relationship not present either in Delci or in this case.
See Delci, 229 Ariz. at 338, ¶ 17, 275 P.3d at 637 (internal quotation marks
omitted). We also distinguished the same statement in Alcombrack, finding
that it was not an implicit endorsement of Restatement (Third) § 7. 238
Ariz. at 542, ¶ 13, 363 P.3d at 702.
¶15 For these reasons, we decline Appellants’ invitation to apply
Restatement (Third) § 54 in this case. See Delci, 229 Ariz. at 338, ¶ 18, 275
P.3d at 637 (stating that adoption of the Restatement (Third) “requires an
evaluation of competing public policies that is more appropriately
addressed to the Arizona Supreme Court.”).
B. Restatement (Second) § 371.
¶16 Restatement (Second) § 371 states:
A possessor of land is subject to liability for physical harm to
others outside of the land caused by an activity carried on by
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him thereon which he realizes or should realize will involve an
unreasonable risk of physical harm to them under the same
conditions as though the activity were carried on at a neutral
place.
(Emphasis added.) The parties cite no Arizona case law interpreting § 371,
but the official comments state that a possessor will not be liable under this
section “unless he should not only recognize the risk involved in his act,
but should also realize that the risk is unreasonable.” Id., cmt. b.
¶17 Section 371 thus hinges on foreseeability, which is not part of
the duty analysis under Arizona law. Barkhurst, 234 Ariz. at 472, ¶ 10, 323
P.3d at 755. We thus decline to apply Restatement (Second) § 371.
C. Reynolds Did Not Owe Dr. Quiroz a Duty as a Landowner.
¶18 Appellants next argue Reynolds owed a duty of care as a
landowner to prevent “off-premises injuries caused by dangerous on-
premises conditions.” A landowner owes invitees a duty to provide
reasonably safe premises and reasonably safe means of ingress and egress.
Ritchie v. Costello, 238 Ariz. 51, 54, ¶ 10, 356 P.3d 337, 340 (App. 2015). A
landowner’s duty to licensees generally terminates when the licensee leaves
the landowner’s property. Wickham v. Hopkins, 226 Ariz. 468, 472, ¶ 17, 250
P.3d 245, 249 (App. 2011); but see Udy v. Calvary Corp., 162 Ariz. 7, 14, 780
P.2d 1055, 1061 (1989) (holding landlord may owe a duty to his tenant for
dangers beyond the premises).
¶19 Appellants do not contend Dr. Quiroz was Reynolds’ invitee
or licensee at any time, or that he suffered injury while on, entering, or
leaving Reynolds’ property. They instead allege that Dr. Quiroz “was
exposed to asbestos . . . carried into [his] childhood home on the clothing
of his father.” Reynolds thus did not owe Dr. Quiroz a duty of care in its
capacity as a landowner.
¶20 Appellants also contend Arizona recognized a landowner’s
liability for “the uncontrolled release of asbestos . . . carried by the wind
onto neighboring property” in Burns v. Jaquays Mining Corp., 156 Ariz. 375,
752 P.2d 28 (App. 1987). They further contend that “[t]here is no
meaningful distinction to be drawn between toxins that are . . . borne by
the wind, and toxins escaping the property via soiled employees’ work
clothing.” Appellants misread Burns, which did not address duty. The
Burns Court instead determined that subclinical asbestos-related injuries
were not sufficient to constitute actual loss. 156 Ariz. at 376, 752 P.2d at 29.
Moreover, the Burns Court only reversed summary judgment on the
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plaintiffs’ nuisance and medical surveillance claims, not their negligence
claim. Id. at 381, 752 P.2d at 34. As Appellants do not assert a nuisance or
medical surveillance claim, Burns is not dispositive on any issue in this case.
¶21 Finally, Appellants contend that “whether Dr. Quiroz’s injury
was foreseeable to Reynolds, and whether Reynolds acted unreasonably in
failing to prevent that foreseeable injury, were issues for the trier of fact.”
That issue is not before us because we do not consider foreseeability in
determining whether a duty of care exists. Barkhurst, 234 Ariz. at 472, ¶ 10,
323 P.3d at 755.
II. Public Policy Considerations.
¶22 A duty of care can also originate in public policy arising from
statutes or common law. US Airways, Inc. v. Qwest Corp., 238 Ariz. 413, 422,
¶ 33, 361 P.3d 942, 951 (App. 2015). Absent either, we typically will not find
a duty based in public policy. See Gilbert Tuscany Lender, LLC v. Wells Fargo
Bank, 232 Ariz. 598, 602, ¶¶ 19-20, 307 P.3d 1025, 1029 (App. 2013) (noting
that prior public policy duty cases were “supported by a state statute or a
Restatement section” and declining to impose a duty where no statute or
Restatement section applied); Estate of Hernandez v. Ariz. Bd. of Regents, 177
Ariz. 244, 253, 866 P.2d 1330, 1339 (1994) (a regulation may give rise to a tort
duty premised on public policy where it “is designed to protect the class of
persons, in which the plaintiff is included, against the risk of the type of
harm which has in fact occurred as a result of its violation”); Wickham, 226
Ariz. at 473, ¶¶ 24-27, 250 P.3d at 250; Diaz v. Phoenix Lubrication Serv., Inc.,
224 Ariz. 335, 341, ¶ 25, 230 P.3d 718, 724 (App. 2010) (declining to find a
duty of care where the plaintiffs “neither cite[d] nor suggest[ed] a statute
that might create a duty” and the common law did not create a duty).
¶23 Appellants cite no statutory or common law basis for the duty
they seek to impose on Reynolds beyond the two Restatement sections
discussed above. They instead raise arguments that largely track the
following list of public policy factors identified in Bloxham:
[T]he reasonable expectations of parties and society generally,
the proliferation of claims, the likelihood of unlimited or
insurer-like liability, disproportionate risk and reparation
allocation, and public policies affecting the expansion or
limitation of new channels of liability.
203 Ariz. at 275, ¶ 9, 53 P.2d at 200 (finding no regulatory violation which
might support a duty of care) (citations omitted). We address each of
Appellants’ public policy arguments below.
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A. Reasonable Expectations of the Parties and Society.
¶24 Appellants argue that imposing a duty of care on Reynolds
would meet the reasonable expectations of the parties and of society and
that “take-home exposure” cases are not an unreasonable extension of
Burns, discussed above. We disagree for two reasons.
¶25 First, Burns is not dispositive for the reasons set forth above.
Second, Appellants do not offer support for their argument that “[a]ny
property owner could reasonably expect that a lack of due care in handling
toxins on its premises, resulting in off-premises injury, could lead to
liability.” A finding of a duty of care must come before considering
whether Reynolds exercised due care. See Estate of Maudsley v. Meta Serv.,
Inc., 227 Ariz. 430, 435, ¶ 15, 258 P.3d 248, 253 (App. 2011)
(stating“determinations of duty should not be based on a ‘fact-specific
analysis’ of the relationship between the parties”); Ritchie v. Krasner, 221
Ariz. 288, 298, ¶ 27, 211 P.3d 1272, 1282 (App. 2009) (“It is essential for both
courts and parties not to conflate the legal determination of duty and the
factual determinations of standard of care, breach, and causation.”).
B. Proliferation of Claims.
¶26 Appellants also argue that recognizing a duty of care would
not open the proverbial “floodgates of litigation” or create an
unmanageable class of potential plaintiffs. As support, they cite a handful
of statistics indicating that only a small percentage of mesothelioma victims
are “homemakers.”
¶27 Setting aside the fact that Dr. Quiroz was not a “homemaker,”
Appellants do not suggest any framework under which the duty of care
they seek to impose would be owed to only “homemakers” and not
“potential plaintiffs who never visited the employers’ premises but came
into contact with . . . asbestos-tainted clothing in a taxicab, a grocery store,
a dry-cleaning establishment, a convenience store, or a laundromat.” Van
Fossen v. MidAm. Energy Co., 777 N.W.2d 689, 699 (Iowa 2009); see also In re
Eighth Judicial Dist. Asbestos Litig., 815 N.Y.S.2d 815, 820-21 (N.Y. Sup. Ct.
2006) (declining to impose a duty of care in a take-home exposure case in
part because “[t]he court must be cautious of creating an indeterminate
class of potential plaintiffs”).
¶28 Appellants’ answer is to argue that non-family member
plaintiffs would have difficulty proving the remaining elements of
negligence. Specifically, they contend that harm to these plaintiffs would
be “arguably unforeseeable . . . to the employer/premises owner,” whereas
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harm to “a close family member” such as Dr. Quiroz is not. Appellants thus
again ask us to find a duty of care based in part on foreseeability of harm,
which Gipson foreclosed.2 Ritchie, 221 Ariz. at 298, ¶ 27, 211 P.3d at 1282.
C. Unlimited or “Insurer-Like” Liability.
¶29 Appellants also argue, without citation to authority, that
recognizing a duty would not create unlimited, insurer-like liability. But
other courts have found that imposing a duty of care in take-home exposure
cases would “exacerbate the current asbestos litigation crisis.” Certified
Question, 740 N.W.2d at 219 (internal quotation marks omitted); see also
Gillen, 40 F. Supp. 3d at 540 (“As other courts have recognized, without a
limiting principle, liability for take-home exposure would essentially be
infinite.”).
¶30 We share this concern because, as noted above, Appellants
offer no way to limit the duty they seek either to employees’ family
members or to asbestos exposure. Absent these constraints, any company
that made or used a potentially hazardous substance could be liable to
anyone who ever came into contact with an employee who arguably could
have carried said hazardous substance offsite. Such a dramatic expansion
of liability would not be compatible with public policy. Van Fossen, 777
N.W.2d at 699.
D. New Channels of Liability.
¶31 Appellants next argue that recognizing a duty of care would
not create new channels of liability, again relying on Restatement (Second)
§ 371. As discussed above, § 371 imposes a duty of care based on
foreseeability of harm. It, therefore, would open new channels of liability
contrary to established Arizona law. Barkhurst, 234 Ariz. at 472, ¶ 10, 323
P.3d at 755.
2 Appellants also offer no method for limiting the duty they seek as to
asbestos exposure as opposed to exposure to other potentially harmful
substances that could be brought home on an employee’s clothing. We note
other courts that have considered take-home exposure cases have struggled
with these issues. See, e.g., Gillen, 40 F. Supp. 3d at 540; Adams, 705 A.2d at
66; In re Certified Question from the Fourteenth District Court of Appeals
of Texas, 740 N.W.2d 206, 217 (Mich. 2007); In re New York City Asbestos
Litig., 840 N.E.2d 115, 122 (N.Y. 2005).
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E. The Connection between Reynolds’ Allegedly Negligent
Conduct and Dr. Quiroz’s Harm.
¶32 Finally, Appellants argue that our public policy analysis
should focus on “the direct connection between [Reynolds’] conduct and the
physical injury suffered by Dr. Quiroz.” However, any such connection
would go to causation, not duty. See Gipson, 214 Ariz. at 143, ¶ 9, 150 P.3d
at 230 (stating that one of the elements of a negligence claim is “a causal
connection between the defendant’s conduct and the resulting injury”).
Whether Reynolds’ alleged conduct caused Dr. Quiroz’s injury is not before
us.
¶33 Having reviewed these policy considerations, the potential
drawbacks of recognizing a duty of care in take-home exposure cases
outweigh any potential benefits. See Guerra v. State, 237 Ariz. 183, 187, ¶ 20,
348 P.3d 423, 427 (2015). We decline to impose a duty of care based on
public policy.
III. Those States That Have Recognized a Duty of Care in Take-Home
Exposure Cases Did So Based on Foreseeability of Harm.
¶34 Appellants also point to a handful of out-of-state authorities
that have recognized a duty of care in take-home exposure cases.3 These
authorities are distinguishable because each court focused on the
foreseeability of harm.
¶35 In Satterfield, the Tennessee Supreme Court found Alcoa
owed a duty of care to an employee’s daughter who contracted
mesothelioma as a result of regular contact with her father’s work clothes.
266 S.W.3d at 353. Unlike Arizona law, however, Tennessee law recognizes
a general duty “to refrain from engaging in affirmative acts that a
reasonable person should recognize as involving an unreasonable risk of
causing an invasion of an interest of another” or acts “which involve[] an
unreasonable risk of harm to another.” Id. at 355 (quoting Restatement
(Second) §§ 284, 302, internal quotation marks omitted). The application of
this duty hinges on whether a person’s actions “create unreasonable and
3 Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092 (Ill. 2012); Satterfield v.
Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008); Chaisson v. Avondale
Indus., Inc., 947 So.2d 171 (La. Ct. App. 2006); Zimko v. Am. Cyanamid, 905
So.2d 465 (La. Ct. App. 2005); Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J.
2006); Rochon v. Saberhagen Holdings, Inc., 140 Wash. App. 1008, 2007 WL
2325214 (Wash. Ct. App. Aug. 13, 2007).
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foreseeable risks of harm to others.” Id. Indeed, “the foreseeability factor
has taken on paramount importance in Tennessee,” id. at 366, while
foreseeability plays no role in Arizona’s duty analysis, Gipson, 214 Ariz. at
144, ¶ 15, 150 P.3d at 231.
¶36 In Olivo, the New Jersey Supreme Court found Exxon Mobil
owed a duty of care to an independent contractor’s spouse who contracted
mesothelioma “as a result of her continuous exposure to asbestos dust . . .
introduced into the home on [her husband’s] work clothes.” 895 A.2d at
1146. But foreseeability is “a crucial element in determining whether
imposition of a duty on an alleged tortfeasor is appropriate.” Id. at 1148
(internal quotation marks omitted). In fact, the Olivo court expressly found
Exxon Mobil “owed a duty to spouses handling the workers’ unprotected
work clothing based on the foreseeable risk of exposure from asbestos borne
home on contaminated clothing.” Id. at 1149-50 (emphasis added).
¶37 The remaining cases Appellants cite are much the same in that
foreseeability of harm was a key factor in each court’s duty analysis. See
Simpkins, 965 N.E.2d at 1098 (“The first factor we look to in determining
whether a duty of care existed in this situation is whether the risk of harm
to the plaintiff was reasonably foreseeable. Though foreseeability is not the
only factor we consider, it is a necessary factor to finding a duty.”) (internal
citations omitted, emphasis added); Chaisson, 947 So.2d at 183 (stating that
Louisiana law “relie[s] heavily on foreseeability when finding a duty”)
(emphasis added); Zimko, 905 So.2d at 483 (“[W]e find American
Cyanamid’s duty is the general duty to act reasonably in view of the
foreseeable risks of danger to household members of its employees resulting
from exposure to asbestos fibers carried home on its employee's clothing,
person, or personal effects.”) (emphasis added); Rochon, 140 Wash. App.
1008, 2007 WL 2325214, at *2 (“A risk is ‘unreasonable,’ and thus a party has
a duty to prevent resulting harm, only if a reasonable person would have
foreseen the risk.”) (emphasis added).
¶38 Those courts that do not focus on foreseeability have declined
to find a duty of care in take-home exposure cases.4 In CSX Transportation,
Inc. v. Williams, the Georgia Supreme Court declined “to extend on the basis
4
Other cases that have rejected a duty of care in take-home exposure
cases and not cited elsewhere in this decision include Price v. E.I. Dupont de
Nemours & Co., 26 A.3d 162 (Del. 2011), Riedel v. ICI Americas, Inc., 968 A.2d
17 (Del. 2009), Nelson v. Aurora Equip. Co., 909 N.E.2d 931, 939 (Ill. App. Ct.
2009), Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448, 453 (Ohio 2010),
and Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. Ct. App. 2007).
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of foreseeability the employer’s duty beyond the workplace to encompass
all who might come into contact with an employee or an employee’s
clothing outside the workplace.” 608 S.E.2d 208, 210 (Ga. 2005). Likewise,
the New York Court of Appeals distinguished Olivo, discussed above,
because “New Jersey, unlike New York, relies heavily on foreseeability in
its duty analysis.” New York City Asbestos Litig., 840 N.E.2d at 122; see also
Certified Question, 740 N.W.2d at 216 (“Michigan, like New York, relies more
on the relationship between the parties than foreseeability of harm when
determining whether a duty exists. For this reason, we do not find Olivo
persuasive.”).
¶39 The Georgia, New York, and Michigan duty analyses more
closely approximate our own, as set forth in Gipson. We therefore find
Reynolds owed no duty of care to Dr. Quiroz for alleged take-home
asbestos exposure.
CONCLUSION
¶40 We affirm the trial court’s ruling granting summary judgment
to Reynolds.
AMY M. WOOD • Clerk of the Court
FILED: AA
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