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Volume XII, Number 330


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"Take-Home" Asbestos Case Decision Could have Ripple Effect

Companies facing "take-home" asbestos or other toxic tort exposure claims in Arizona, or in other jurisdictions applying Arizona law, now have a new case to cite in dispositive motions. With the Sept. 20 Arizona Court of Appeals decision in Quiroz v. Alcoa, Inc., Arizona recently joined the list of states that have refused to allow claims for "take-home" asbestos exposures.

In the ruling, the Court of Appeals affirmed a trial court's ruling granting a defendant's Motion for Summary Judgment in a case in which plaintiffs alleged their decedent contracted mesothelioma as a result of exposure to asbestos via his father's work at defendant's factory. Plaintiffs claimed decedent's father brought asbestos dust home on his clothing after working with asbestos-containing products at defendant's factory and that this "take-home" exposure caused decedent's mesothelioma.

In a case of first impression in Arizona, the Court found that a premises owner owes no duty to the child of an employee in such "take-home" asbestos exposure cases.

In considering the issue, the Court distinguished Arizona law from other states, in that Arizona does not consider foreseeability of injury in determining whether a defendant owes a plaintiff a duty of care. The Court likewise declined to apply the Restatement (Second and Third) of Torts, Sections 371 and 54 respectively, finding that such application would "substantially change Arizona's long-standing conceptual approach to negligence law by effectively eliminating duty as one of the require elements of a negligence claim…"  Id. at 5..

The Court also rejected Plaintiff's argument that finding no duty in "take-home" cases would violate public policy considerations. In doing so, the Court expressed concern over the potential for limitless liability for defendants, stating:

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 off-site. Such a dramatic expansion of liability would not be compatible with public policy.  Id. at 13-14 (internal citations omitted).

While Quiroz addressed "take-home" exposure with respect to a premises owner and is silent as to claims against product manufacturers, the Court's reasoning finding no duty exists should arguably apply to both types of defendants.

Other state courts have likewise indicated, to varying degrees, that no duty to warn exists for "take-home" exposures. This majority trend includes decisions from Georgia, New York, Michigan, Texas, Maryland, Iowa, Ohio and Delaware. California appellate courts are split, though the California Supreme Court is expected to rule on the issue soon. An Illinois appellate court has ruled that an employer owed no duty to warn of "take-home" exposures before 1964, when the first study on the issue was published. See Holmes v. Pneumo Abex, et al., 55 N.E.2d 1173 (Ill.App. 4th 2011).

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume VI, Number 272

About this Author

Dennis Dobbels, Polsinelli Law Firm, Toxic and Mass Tort Attorney
Shareholder, Practice Chair

With his 25 years of trial and appellate experience, Dennis J. Dobbels offers clients an extensive background in all aspects of product liability, toxic tort and legacy liability, tax litigation, and insurance and complex commercial litigation.

In state and federal courtrooms around the nation, Mr. Dobbels has handled single plaintiff cases and consolidated cases involving more than 100 plaintiffs.  Mr. Dobbels also serves as regional trial counsel, assisting clients with complex litigation issues and managing the administrative and trial...

Luke J. Mangan, Polsinelli PC, Toxic Tort Attorney, Complex Litigation Attorney

Luke Mangan is a trial attorney and shareholder in the firm's Toxic and Mass Tort practice. With nearly 15 years of experience in the courtroom and numerous jury trials, his extensive knowledge in the field of toxic and mass tort litigation helps clients manage complex litigation and take cases to a jury when necessary.

Luke partners with the companies he represents to develop and implement proactive and efficient strategies to help them safely navigate what can be dangerous waters: toxic and mass tort litigation.