Arizona Court of Appeals Division One holds that an employer owes no duty of care to an employee’s child who contracts mesothelioma from asbestos brought home on work clothes.

The son of a man employed by a metal producer developed mesothelioma later in life.  The son alleged that his father had been repeatedly exposed to asbestos fibers in his place of employment, transmitted those fibers to his home in his clothing, car, and body, and exposed his son during childhood to the same fibers.  The son sued the employer, claiming that the employer negligently exposed him to asbestos.  The superior court held that the employer owed the son no duty of care as a matter of law.

The Court of Appeals affirmed, holding that employers do not owe a duty of care to family members in “take-home exposure” cases because Arizona law does not recognize a general duty of care and prohibits consideration of foreseeability as an element of duty.  Although the question of duty was one of first impressions in Arizona, the Court declined to adopt portions of the Restatement (Third) of Torts that imposed a duty of care on employers because duties were based on either a general duty of care or the foreseeability of the injury.  The Court likewise refused to follow out-of-state cases imposing a duty of care for take-home exposure because the foreseeability of family-member asbestos exposure was a key element of imposing a duty of care on the employer.  The Court also held that public policy considerations did not counsel in favor of finding a duty of care:  imposing a duty of care on the employer would create an unmanageable class of potential plaintiffs consisting of anyone in the general public exposed to asbestos originating on the employer’s land and would expose employers to channels of liability based on foreseeability.  The Court was also unpersuaded by the son’s claims that there was a “direct connection” between employer’s conduct and the physical injury, deeming that such connection was an element of causation, not a public policy consideration justifying the imposition of a duty of care.

Judge Thompson delivered the opinion; Judges Orozco and Swann concurred.