Arizona Supreme Court holds that an employer who uses asbestos owes no duty of care to members of the public harmed by asbestos residue carried on the work clothes of employees, including employees’ family members. The Court also holds that Arizona will not adopt the duty framework set out in the Third Restatement of Torts.

A man died from cancer associated with asbestos exposure several decades after his father had been exposed to asbestos while working at a plant.  The man’s family sued the employer, alleging that the man’s father unknowingly exposed the man to asbestos by carrying asbestos fibers home from work on his work clothes.  The man’s family sued, on the theory that the employer had a duty to protect him from exposure to take-home asbestos.  The superior court granted the employer’s motion for summary judgment, finding that the father’s employer owed no duty.  The family appealed, and the Court of Appeals affirmed.  The Supreme Court granted review to answer whether the employer owed a duty to those exposed to take-home asbestos, and whether Arizona should adopt the duty framework set out in the Third Restatement of Torts.  

The Supreme Court held that the employer did not owe a duty of care.  In any tort case, the plaintiff must show that the defendant owed a duty of care to the plaintiff, breached that duty, and that the breach caused harm to the plaintiff.  In Gipson v. Kasey, 214 Ariz. 141 (2007), the Supreme Court held that foreseeability of harm is not a factor in determining whether a duty exists.  Instead, a duty may only arise based on a special relationship or based on public policy.  The primary sources of finding a duty based on public policy are Arizona statutes and federal statutes, but no statutes supported a duty in this instance, and thus there is no public policy duty that supports liability to the public for take-home asbestos exposure.  There is also no special relationship between a company that uses asbestos and the general public, and landowners do not owe a general duty of care to the public for off-premises injury.  

The Third Restatement of Torts § 7 created a new duty framework wherein a presumed duty exists when a defendant’s actions create a risk of harm to a plaintiff.  Arizona has never adopted this framework.  The Supreme Court determined that adopting the Third Restatement’s framework is both unwise and unwarranted, believing it to be impractical, unmanageable, and equivalent to stating that everyone owes a legal duty of care to all people at all times.  

The dissent, for both Chief Justice Bales and Vice Chief Justice Pelander, would hold that an actor owes a duty of reasonable care when engaging in activities that expose others to risks of physical harm.  The dissent argued that an employer who exposes its workers to toxic asbestos dust without warning and without any protective measures is engaging in risky conduct that creates a duty of care under well-established principles of both Arizona law and the Second Restatement of Torts, which Gipson did not change.  Chief Justice Bales would also adopt the Third Restatement, arguing it simply confirms the common law understanding of duty to strangers.  

Justice Gould delivered the opinion of the court.  Chief Justice Bales dissented, joined in part by Vice Chief Justice Pelander.