IN THE
SUPREME COURT OF THE STATE OF ARIZONA
ERNEST V. QUIROZ AND MARY QUIROZ, HUSBAND AND WIFE,
Plaintiffs/Appellants,
V.
ALCOA INC., ET AL.,
Defendants/Appellees.
No. CV-16-0248-PR
Filed May 11, 2018
Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge
No. CV2013-009160
AFFIRMED
Opinion of the Court of Appeals, Division One
240 Ariz. 517 (App. 2016)
VACATED
COUNSEL:
Burt Rosenblatt, Ely Bettini Ulman & Rosenblatt, Phoenix; Michael B.
Gurien (argued), Waters, Kraus & Paul, El Segundo, CA, Attorneys for
Ernest V. Quiroz and Mary Quiroz
Edward M. Slaughter (argued), Hawkins Parnell Thackston & Young LLP,
Dallas, Texas; Molly C. Machold, Mark B. Tuvim, Gordon & Rees LLP,
Phoenix, Attorneys for Alcoa, Inc., et al.
David L. Abney, (argued) Ahwatukee Legal Office, PC, Phoenix; Stanley G.
Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson, Attorneys for
Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers
Association
Ellen M. Bublick, University of Arizona James E. Rogers College of Law,
Tucson, Attorney for Amicus Curiae
Elizabeth S. Fitch, Righi Fitch Law Group, PLLC, Phoenix, Attorney for
Amicus Curiae Coalition for Litigation Justice, Inc.
QUIROZ V. ALCOA
Opinion of the Court
Christopher Robbins, Hill, Hall & DeCiancio, PLC, Phoenix, Attorney for
Amicus Curiae Arizona Association of Defense Counsel
Thomas E. Kelly, Jr., K&L Gates LLP, Seattle, WA, Attorney for Amicus
Curiae Chamber of Commerce of the United States of America
JUSTICE GOULD authored the opinion of the Court, in which JUSTICE
BRUTINEL and JUSTICES TIMMER, BOLICK, and LOPEZ joined. CHIEF
JUSTICE BALES and VICE CHIEF JUSTICE PELANDER dissented.
JUSTICE GOULD, opinion of the Court:
¶1 We address whether an employer who used asbestos
materials in its workplace before 1970 had a duty to protect the public from
off-site contact with employees who may have been carrying asbestos fibers
on their work clothes. Such exposure is referred to as secondary, or take-
home, asbestos exposure. We hold that the employer owed no duty to the
public regarding secondary asbestos exposure. No common law special
relationship existed requiring the employer to protect the public from
secondary asbestos exposure. Additionally, Plaintiffs/Appellants have
identified no public policy giving rise to such a duty. Further, because we
reject the duty framework contained in the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm (“Third Restatement”), we hold
that no duty exists on that basis.
¶2 In reaching our decision today, we affirm Arizona’s current
duty framework in several key respects. First, duty is not presumed; in
every negligence case, the plaintiff bears the burden of proving the
existence of a duty. Second, pursuant to Gipson v. Kasey, 214 Ariz. 141, 144
¶ 15 (2007), foreseeability is not a factor in determining duty. Third, duty
is based on either special relationships recognized by the common law or
relationships created by public policy. Fourth, in the context of duty, the
primary sources for identifying public policy are state and federal statutes.
In the absence of such legislative guidance, duty may be based on the
common law — specifically, case law or Restatement sections consistent
with Arizona law.
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Opinion of the Court
BACKGROUND 1
¶3 Ernest V. Quiroz died in October 2014 from mesothelioma, a
form of cancer associated with exposure to asbestos. Quiroz’s surviving
wife, children, and parents (collectively, “the Family”) filed a lawsuit,
alleging Defendants Reynolds Metal Company, Alcoa, Inc., and Reywest
Development Company (collectively, “Reynolds”) negligently caused his
death. Specifically, the Family alleges that when Quiroz’s father (“Father”)
was working at Reynolds’ plant from 1948 until 1983, his clothes were
contaminated with asbestos fibers. The Family contends that when Father
came home from work, Quiroz, who lived with Father as a minor from 1952
to 1970, was exposed to the asbestos fibers on Father’s clothes. The Family
further contends this exposure eventually caused Quiroz’s mesothelioma.
¶4 The Family asserts that Reynolds had a duty to protect Quiroz
from exposure to take-home asbestos. They contend Reynolds breached
this duty by failing to warn Father about the dangers of secondary asbestos
exposure. The Family also alleges that Reynolds failed to provide safety
equipment to Father and failed to take necessary safety measures to protect
Quiroz from such exposure.
¶5 Reynolds filed a motion for summary judgment, asserting it
owed no duty to Quiroz. The superior court granted Reynolds’ motion, and
the court of appeals affirmed. Quiroz v. ALCOA Inc., 240 Ariz. 517, 519 ¶ 1
(App. 2016).
¶6 We granted review because the Family raises two issues of
statewide importance: (1) whether Reynolds owed a duty to Quiroz; and (2)
whether Arizona should adopt the duty framework contained in the Third
Restatement. We have jurisdiction pursuant to article 6, section 5(3), of the
Arizona Constitution and A.R.S. § 12-120.24.
1 Because this case involves an appeal from a grant of summary judgment,
we view the evidence and all reasonable inferences in the light most
favorable to the non-moving parties. Andrews v. Blake, 205 Ariz. 236, 240
¶ 12 (2003).
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Opinion of the Court
DISCUSSION
I.
¶7 To establish a defendant’s liability for a negligence claim, a
plaintiff must prove: (1) a duty requiring the defendant to conform to a
certain standard of care; (2) breach of that standard; (3) a causal connection
between the breach and the resulting injury; and (4) actual
damages. Gipson, 214 Ariz. at 143 ¶ 9; Markowitz v. Ariz. Parks Bd., 146 Ariz.
352, 356 (1985); Ontiveros v. Borak, 136 Ariz. 500, 504 (1983). Whether a duty
exists “is a legal matter to be determined before the case-specific facts are
considered.” Gipson, 214 Ariz. at 145 ¶ 21. As such, we review the existence
of duty de novo as a matter of law. Id. at 143 ¶¶ 7, 9.
A. Foreseeability
¶8 Foreseeability is a concept that can be used in different ways
to determine tort liability. For many years, Arizona, like most jurisdictions,
used foreseeability as a factor in determining duty. A duty based on
foreseeability exists when a defendant realizes or should realize that his
conduct creates an unreasonable risk of harm to a “foreseeable plaintiff.”
Rossell v. Volkswagen of Am., 147 Ariz. 160, 164 (1985); Tucker v. Collar, 79
Ariz. 141, 146 (1955), overruled on other grounds by Rosen v. Knaub, 175 Ariz.
329 (1993). A “foreseeable plaintiff” is one who is within the “orbit,” or
“zone of danger” created by a defendant’s conduct. See Rossell, 147 Ariz. at
164; Tucker, 79 Ariz. at 146; see also Palsgraf v. Long Island R.R. Co., 162 N.E.
99, 99–101 (N.Y. 1928) (holding that foreseeability is a factor in determining
duty and stating that “the orbit of the danger as disclosed to the eye of
reasonable vigilance would be the orbit of the duty”).
¶9 Foreseeability can also be used to determine whether the
defendant breached the relevant standard of care or caused the plaintiff’s
injury. Gipson, 214 Ariz. at 144 ¶¶ 16–17 (causation); Markowitz, 146 Ariz.
at 357 (standard of care); Coburn v. City of Tucson, 143 Ariz. 50, 52 (1984)
(standard of care). Unlike duty, applying foreseeability to breach and
causation determines whether the injury was foreseeable, and not whether
the plaintiff was foreseeable. See Robertson v. Sixpence Inns of Am., Inc., 163
Ariz. 539, 544–45 (1990); Markowitz, 146 Ariz. at 356–57.
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Opinion of the Court
¶10 Prior to Gipson, some Arizona courts limited foreseeability to
determining the issue of breach. See Markowitz, 146 Ariz. at 357; Coburn, 143
Ariz. at 51–52. These courts reasoned that applying foreseeability to duty
required judges to make fact-specific determinations that encroached on the
role of the jury. Markowitz, 146 Ariz. at 357; Coburn, 143 Ariz. at 52.
However, despite these cases, foreseeability was widely used to determine
the existence of duty, and it remained deeply embedded in the duty
framework of this state. See, e.g., Donnelly Constr. Co. v.
Oberg/Hunt/Gilleland, 139 Ariz. 184, 187 (1984) (“Duty and liability are only
imposed where both the plaintiff and the risk are foreseeable to a reasonable
person.”); Rager v. Superior Coach Sales and Serv. of Ariz., 111 Ariz. 204, 210
(1974) (“Whether or not there is a duty on the part of the defendant to
protect the plaintiff from the injury of which he complains is based on
foreseeability.”); West v. Cruz, 75 Ariz. 13, 19 (1952) (adopting Palsgraf’s
foreseeability framework for determining duty); see also Prosser & Keeton,
The Law of Torts § 43, at 284–88 (5th ed. 1984) (discussing the adoption of
foreseeability to determine duty by most jurisdictions).
¶11 In Gipson, this Court expressly held “that foreseeability is not
a factor to be considered by courts when making determinations of duty,
and we reject any contrary suggestion in prior opinions.” 214 Ariz. at 144
¶ 15. Gipson acknowledged “that our case law has created some confusion
and lack of clarity . . . as to what extent, if any, foreseeability issues bear on
the initial legal determination of duty.” Id. (citation and internal quotation
marks omitted). However, Gipson concluded that determining “[w]hether
an injury to a particular plaintiff was foreseeable by a particular defendant
necessarily involves an inquiry into the specific facts of an individual case,”
and that “[s]uch factual inquiries are reserved for the jury.” Id. ¶ 16.
¶12 Thus, Gipson enacted a sea change in Arizona tort law by
removing foreseeability from our duty framework. See, e.g., Guerra v. State,
237 Ariz. 183, 185 ¶ 8 (2015) (stating foreseeability is no longer a factor in
determining duty); Barkhurst v. Kingsman of Route 66, Inc., 234 Ariz. 470, 475
¶ 17 (App. 2014) (citing Gipson and stating that foreseeability “is no longer
the proper standard for determining duty in Arizona”). Post-Gipson, to the
extent our prior cases relied on foreseeability to determine duty, they are
no longer valid. See Boisson v. Ariz. Bd. of Regents, 236 Ariz. 619, 622 ¶ 6
(App. 2015) (holding that post-Gipson “foreseeability is not a part of the
duty inquiry and those portions of pre-Gipson cases relying on foreseeability
when addressing the issue are no longer valid”); Delci v. Gutierrez Trucking
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Opinion of the Court
Co., 229 Ariz. 333, 336 ¶ 11 (App. 2012) (applying Gipson and holding that
duty determinations in pre-Gipson cases “premised on a foreseeability
analysis” are “no longer valid”).
¶13 To be clear, in eliminating foreseeability, Gipson changed our
duty framework by limiting the duty analysis to special relationships and
public policy. Infra ¶ 14. It did not, however, narrow the circumstances in
which an actor may be liable for negligent conduct. Additionally, Gipson did
not completely remove foreseeability from our negligence framework.
Rather, Gipson held that foreseeability may still be used in determining
breach and causation. 214 Ariz. at 143, 145 ¶¶ 10, 16–17, 21; see also Vasquez
v. State, 220 Ariz. 304, 314 ¶ 33 (App. 2008). Stated another way, Gipson held
that while courts may no longer use foreseeability to determine whether a
plaintiff is foreseeable (duty), they may still use foreseeability in
determining whether the injury is foreseeable (breach and causation). 214
Ariz. at 143–45 ¶¶ 9–10, 15–17, 21; supra ¶¶ 8–9.
B. Special Relationships and Public Policy
¶14 Based on Gipson’s elimination of foreseeability, duty in
Arizona is based on either recognized common law special relationships or
relationships created by public policy. See Guerra, 237 Ariz. at 187 ¶ 20;
Gipson, 214 Ariz. at 144–45 ¶¶ 18, 23. Duties based on special relationships
may arise from several sources, including special relationships recognized
by the common law, contracts, or “conduct undertaken by the defendant.”
Gipson, 214 Ariz. at 145 ¶¶ 18–19; Restatement (Second) of Torts §§ 314A,
316–19 (“Second Restatement”) (discussing duties based on common law
special relationships); Second Restatement § 323 (discussing duty based on
a negligent undertaking); see also Diaz v. Phx. Lubrication Serv., Inc., 224 Ariz.
335, 339–40 ¶¶ 15–19 (App. 2010) (discussing duty arising from a contract).
¶15 Public policy creating a duty is based on our state and federal
statutes and the common law. See Gipson, 214 Ariz. at 146 ¶¶ 25–26; cf.
Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 232 Ariz. 598, 602 ¶¶ 19–20
(App. 2013) (declining to impose a duty unless “supported by a state statute
or a Restatement section”). A statute reflecting public policy may create a
duty when a plaintiff “is within the class of persons to be protected by the
statute and the harm that occurred . . . is the risk that the statute sought to
protect against.” Gipson, 214 Ariz. at 146 ¶ 26. Unlike duties based on
special relationships, duties based on public policy do not necessarily
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Opinion of the Court
require preexisting relationships. Id. at 145 ¶ 22. Rather, the statute itself
creates a legal relationship between the parties giving rise to a duty. See
Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 42 (1990) (“The
relationship that gives rise to a duty of care may also be created by
statute.”).
¶16 To be sure, in a country such as ours with over 300 million
people, duties based on public policy are necessary to govern relationships
between people who may be legal “strangers.” For example, traffic laws
give rise to duties regulating conduct between motorists. Evans v. Pickett,
102 Ariz. 393, 397–98 (1967) (discussing duty of motorist, based on a traffic
statute, to maintain a reasonable speed to avoid collisions with other
motorists), overruled on other grounds by Heimke v. Munoz, 106 Ariz. 26 (1970);
Gage v. Kuhlmeier, 132 Ariz. 465, 467 (App. 1982) (discussing duty of
motorist, based on a traffic statute, to avoid a collision by yielding the right-
of-way). Likewise, criminal laws give rise to duties between members of
the public who do not share preexisting relationships. See Gipson, 214 Ariz.
at 146 ¶ 26.
II.
A. Duty Based on Public Policy
¶17 The Family urges us to recognize a duty in this case by
considering various public policy grounds. See, e.g., Bloxham v. Glock, Inc.,
203 Ariz. 271, 275–76 ¶¶ 9–12 (App. 2002) (listing multiple public policy
factors a court may consider in determining duty); see also Quiroz, 240 Ariz.
at 522–23 ¶¶ 23–33 (addressing Bloxham factors raised by the Family to urge
the existence of a duty based on public policy grounds). The Family does
not, however, cite any state or federal statute giving rise to a duty in this
case. 2
2 We note that several federal statutes regulating asbestos were enacted
after 1970, the last date of Quiroz’s secondary exposure to asbestos. See, e.g.,
20 U.S.C. §§ 4011–4022 (1984); 15 U.S.C. §§ 2641–2656 (1986); 15 U.S.C.
§ 2607(f) (1990). There are also some general environmental laws that
apply to asbestos. See, e.g., 42 U.S.C. §§ 7401–7431 (1970); 42 U.S.C.
§§ 9601–9628 (1980). None of these statutes were cited by the Family as a
public policy basis giving rise to a duty, and we do not decide whether they
may in fact give rise to a duty for secondary asbestos exposure. Cf. Ga. Pac.,
LLC v. Farrar, 69 A.3d 1028, 1039 (Md. 2013) (holding that because the
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Opinion of the Court
¶18 In Arizona, our primary source for identifying a duty based
on public policy is our state statutes. See Gipson, 214 Ariz. at 146 ¶¶ 25–26;
see also Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 253, 255–56
(1994) (holding that statutes proscribing underage drinking give rise to a
duty by non-licensees to refrain from furnishing alcohol to minors);
Brannigan v. Raybuck, 136 Ariz. 513, 516–17 (1983) (stating that statutes
barring minors from consuming alcohol create a duty prohibiting liquor
licensees from furnishing alcohol to minors); Cobb v. Salt River Valley Water
Users’ Ass’n, 57 Ariz. 451, 456–57 (1941) (noting a local ordinance gave rise
to a duty by adjacent property owners to avoid discharging water on public
sidewalks); Estate of Maudsley v. Meta Servs., Inc., 227 Ariz. 430, 435–37
¶¶ 16–22 (App. 2011) (stating that mental health statutes give rise to a duty
by mental health facilities to screen, evaluate, and treat individuals who
may be in need of mental health services). We have also recognized that
local ordinances may give rise to a public policy duty. Thomas v. Baker
Family Tr., 191 Ariz. 187, 188 (App. 1997) (stating that while a property
owner has no common law duty to repair a sidewalk adjacent to his
property, “such a duty may be imposed by statute or city ordinance”).
¶19 This litany of cases demonstrates that, in the absence of a
statute, we exercise great restraint in declaring public policy. As we stated
in Ray v. Tucson Medical Center, 72 Ariz. 22, 35–36 (1951):
The declaration of “public policy” is primarily a legislative
function. The courts unquestionably have authority to
declare a public policy which already exists and to base its
decisions upon that ground. But in the absence of a legislative
declaration of what that public policy is, before courts are
justified in declaring its existence such public policy should
be so thoroughly established as a state of public mind, so
united and so definite and fixed that its existence is not subject
to any substantial doubt.
Cf. Stanley v. McCarver, 208 Ariz. 219, 227–28 ¶ 33 (2004) (Jones, C.J.,
dissenting) (stating that in recognizing tort duties, we must “allow the
legislature to define the public policy of the state”); Local 266, Int’l Bhd. of
earliest OSHA regulations were created in 1972, a manufacturer had no
duty to warn of the dangers of household exposure to asbestos prior to
1972).
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Opinion of the Court
Elec. Workers, A. F. of L. v. Salt River Project Agric. Improvement & Power Dist.,
78 Ariz. 30, 40–41 (1954) (“We have said that statements of public policy
must be made by the people through the legislature.”)
¶20 We have also recognized public policy giving rise to a duty
based on the common law — specifically, case law and Restatement sections
consistent with Arizona law. Supra ¶¶ 14–15. However, reliance on the
common law does not mean that this Court establishes duties based on our
own notions of appropriate public policy. Thus, even in those cases where
we have mentioned “social concerns” in relation to tort duties, we have
ultimately premised the existence of a duty on a statute or a recognized
special relationship. See, e.g., Stanley, 208 Ariz. at 226 ¶ 22 (stating that
duties “emanate from [a] panoply of social concerns,” but basing duty on
negligent undertaking); Ontiveros, 136 Ariz. at 508 (noting that duty is based
on the “sum total” of policy considerations, but basing the existence of duty
on a statute and the special relationship between liquor licensees and their
customers).
¶21 Accordingly, we conclude the Family has failed to identify a
valid public policy creating a legal relationship giving rise to a duty.
B. Duty Based on a Special Relationship
¶22 There is no dispute that Reynolds, as Father’s employer, owed
a duty of care to Father. See Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22,
34 (App. 1994) (noting a duty exists based on the employer–employee
special relationship); Second Restatement § 314B (same). Rather, the Family
argues there was a special relationship between Reynolds and any member
of the public, including Quiroz, who may have been exposed to secondary
asbestos.
¶23 We reject this argument because there is no legally recognized
special relationship giving rise to a duty between Reynolds and Quiroz.
Quiroz did not have an employer-employee relationship with Reynolds,
and there is no allegation that Reynolds created a special relationship with
Quiroz based on a contract or a negligent undertaking. See supra ¶ 14.
Additionally, Reynolds and Quiroz shared no relationship as landowner-
invitee or landowner-licensee. Quiroz suffered no injury on Reynolds’
property, nor was he injured while entering or leaving Reynolds’ property.
See Wickham v. Hopkins, 226 Ariz. 468, 471, 472 ¶¶ 11, 17–18 (App. 2011)
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Opinion of the Court
(explaining landowner’s duties to licensees and invitees); Second
Restatement §§ 318, 341–43 (same).
¶24 Even so, both the Family and the dissent argue that
landowners such as Reynolds owe a general duty of care to the public for
off-premises injuries. Specifically, they claim that Reynolds owes a duty of
care to anyone who is injured by its “risk-creating conduct,” “even when
the harm occurs off-premises.” See infra ¶¶ 95, 110.
¶25 The general duty proposed by the Family and the dissent
surpasses the bounds of Arizona law. While our case law recognizes that
landowners may, in some circumstances, owe a duty of care for off-premises
injuries, it does not support the Family’s far more sweeping claim that
landowners owe a general duty to the public for off-premises injuries.3
Indeed, none of the authorities cited by the Family or the dissent support
the existence of such a broad duty.
¶26 The Family’s reliance on Udy v. Calvary Corp., 162 Ariz. 7
(App. 1989), for the existence of a general off-premises duty is misplaced.
In Udy, a tenant rented an unfenced trailer space next to a busy street. Id.
3 Because the Family’s claim is limited to a negligence claim, we do not
discuss a landowner’s potential liability for off-premises injuries premised
on strict liability. For example, companies that design, manufacture, sell or
distribute asbestos materials and products may be held strictly liable for
injuries caused to plaintiffs, regardless of where the injury occurs. See O.S.
Stapley Co. v. Miller, 103 Ariz. 556, 559–60 (1968) (discussing strict liability
for manufacturers and sellers). Other grounds for off-premises strict
liability may also apply to landowners. See Gillespie Land & Irrigation Co. v.
Gonzalez, 93 Ariz. 152, 165 (1963) (holding that a landowner may be strictly
liable for damages caused by diverting natural waters or flood waters onto
neighboring and downstream properties); Schlecht v. Schiel, 76 Ariz. 214, 218
(1953) (same); Correa v. Curbey, 124 Ariz. 480, 481 (App. 1979) (stating a
landowner may be strictly liable for off-premises injuries caused by
conducting abnormally dangerous activities on his land, such as blasting
with explosives); see also 42 U.S.C. §§ 6901–6908a (describing statutory
liability for releasing hazardous substances); 42 U.S.C. §§ 9601–9628
(describing liability for transporting, disposing of, or releasing hazardous
waste).
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Opinion of the Court
at 9–10. The tenant had small children and sought permission from the
landlord to erect a fence to prevent her children from running into the
street. Id. The landlord denied the request. Id. Later, one of the tenant’s
children ran into the street and was seriously injured when he was struck
by a car. Id. The tenant sued the landlord for her child’s injuries. Id. The
landlord filed a motion for summary judgment, claiming he had no duty to
protect tenants from dangers outside his property. Id. at 10–11. The
superior court granted the motion. Id.
¶27 The court of appeals reversed, stating that the location of the
injury was not a factor in determining the existence of a duty. Id. at 11.
Rather, the court held that duty was based on the parties’ special
relationship as landlord–tenant. Id. at 10–13. In contrast, whether the
landlord was liable for injuries occurring outside his property concerned
the relevant standard of care, i.e., the reasonable precautions the landlord
was required to take for the safety of his tenants. Id. at 10–13; see also
Stephens v. Bashas’ Inc., 186 Ariz. 427, 430–31 (App. 1996) (holding that duty
was based on landowner-invitee relationship, and the fact plaintiff was
injured outside defendant’s premises was relevant to breach/standard of
care, not duty).
¶28 Udy has no application here. Of course, if a special
relationship exists between a landowner and an injured plaintiff, a duty
exists even if the injury occurs off-premises. Udy, 162 Ariz. at 9–10; see also
Engler v. Gulf Interstate Eng’g, Inc., 230 Ariz. 55, 57 ¶ 9 (2012) (noting that an
employer/landowner is vicariously liable for off-premises injuries caused
by the negligence of its employee); Wickham, 226 Ariz. at 471, 472 ¶¶ 11, 17–
18 (discussing duty owed by landowners to business invitees for off-
premises injuries); Stephens, 186 Ariz. at 430–31 (holding that a landowner
owes a duty to business invitees to provide safe ingress and egress from his
property). But here, the parties do not share a landlord–tenant relationship;
indeed, the Family has not alleged the existence of any recognized special
relationship.
¶29 The Family next contends that Burns v. Jaquays Mining Corp.,
156 Ariz. 375 (App. 1987), “implicitly” recognizes a duty of care owed by
landowners who release airborne asbestos fibers onto neighboring
properties. The Family asserts that Burns, by extension, gives rise to a duty
owed by Reynolds to protect the public from secondary exposure to
asbestos. We disagree.
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Opinion of the Court
¶30 In Burns, the defendant landowner owned an asbestos mill.
The asbestos fibers and waste from the mill blew into a neighboring trailer
park. Id. at 376. The amount of airborne asbestos blown into the trailer park
was substantial; the governor declared the park a disaster area, and steps
were taken to relocate the residents. Id.
¶31 The residents eventually filed claims against the mill for
negligence, gross negligence, strict liability, and nuisance, alleging their
exposure to airborne asbestos increased their risk of developing asbestos-
related diseases in the future. Id. at 377. The owner of the mill filed a
motion for summary judgment, which the superior court granted,
dismissing all the residents’ claims except for their property damage claim.
Id.
¶32 The court of appeals affirmed the superior court’s grant of
summary judgment as to the residents’ negligence claim. Id. at 377, 381.
The court held that the residents had no cognizable negligence claim
because the risk of future injuries was insufficient to prove the requisite
element of “actual loss or damage[s].” Id. at 376; see also Markowitz, 146 Ariz.
at 356 (stating proof of actual damages is an element of a negligence claim).
¶33 However, Burns reversed the trial court’s dismissal of the
residents’ nuisance claim. Burns concluded that, based on Ayers v. Twp. of
Jackson, 525 A.2d 287, 294, 300–01 (N.J. 1987), the medical costs associated
with monitoring the residents’ subclinical injuries was recoverable in the
context of a nuisance claim. Burns, 156 Ariz. at 379–81; see also Ayers, 525
A.2d at 294, 300–01 (holding that damages for medical monitoring may be
recovered in a nuisance claim).
¶34 The Family reads too much into Burns. The Family has never
alleged that Reynolds created a nuisance. Perhaps more importantly, Burns
did not address duty; it addressed damages. 156 Ariz. at 377–81. The court
never determined, expressly or impliedly, that the mill owner owed a
general duty to the public for injuries caused by asbestos that was blown
off its property. Rather, it simply affirmed the well-established rule that
when a landowner creates a nuisance that physically intrudes upon another
person’s property, it may be liable for the damages caused by the nuisance.
Id. at 300-01; see also Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs.
in Ariz., 148 Ariz. 1, 4 (1985) (discussing generally the torts of public and
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Opinion of the Court
private nuisance); Kovacovich v. Phelps Dodge Corp., 62 Ariz. 193, 197 (1945)
(holding that proof showing smoke from company’s smelter damaged
plaintiff’s crops fixed company’s liability based on nuisance); United Verde
Extension Mining Co. v. Ralston, 37 Ariz. 554, 561–62 (1931) (holding smoke
and gas discharged from company’s smelter created a nuisance; as a result,
company was liable for damages caused to plaintiff’s property that was
located ten miles from its plant); see also A.R.S. § 13-2917(A)(1) (defining a
public nuisance as “anything . . . injurious to health . . . that interferes with
the comfortable enjoyment of life or property by an entire community or
neighborhood or by a considerable number of persons”).
¶35 MacNeil v. Perkins, 84 Ariz. 74 (1958), cited by Amicus and the
dissent, also does not support the existence of a general off-premises duty.
Rather, MacNeil recognizes a landowner’s liability as to children for
maintaining an attractive nuisance on its property. Id. at 78–79, 82–86; see
Second Restatement § 339 (listing the elements of the attractive nuisance
doctrine). No general off-premises duty was addressed or discussed by the
Court. And, to be sure, the Family has never alleged that Reynolds created
or maintained an attractive nuisance at its facility.
C. Duty Based on Foreseeability
¶36 Despite Gipson’s express rejection of foreseeability as a factor
in determining duty, both the Family and the dissent attempt to support
their general duty claim by citing cases and the Second Restatement
sections that rely on foreseeability. For example, as support for its general
off-premises duty, the dissent quotes Crouse v. Wilbur-Ellis Co., 77 Ariz. 359,
365 (1954), as stating that “fellow-citizens” have a duty to “avoid causing
harm to one another.” See infra ¶ 97. However, when this statement is read
in context, it is plain that Crouse is discussing the existence of a duty based
on foreseeability. See Crouse, 77 Ariz. at 365–66. Indeed, throughout the
entire section quoted by the dissent, Crouse engages in a foreseeability
analysis, ultimately concluding that a duty existed because the “plaintiffs
were foreseeable plaintiffs, ones within the orbit of the risk.” Id. at 366
(citation and internal quotation marks omitted). 4
4 At bottom, the underlying liability for both the landowner and the
insecticide company in Crouse was, like the landowner’s liability in S. A.
Gerrard Co. v. Fricker, 42 Ariz. 503 (1933), based on a physical trespass
caused by crop dusting. 77 Ariz. at 361–62; see Sanders v. Beckwith, 79 Ariz.
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Opinion of the Court
¶37 Amicus and the dissent also argue that Carver v. Salt River
Valley Water Users’ Association, 104 Ariz. 513 (1969), recognizes a general
duty owed by landowners for all off-premises injuries. Carver involved a
plaintiff who was injured when a tree planted next to a public roadway fell
on her car. Id. at 514–15. The tree was located on an irrigation canal owned
and maintained by defendant. Id. at 515. Amicus and the dissent claim that
the court based the defendant’s duty on § 364 of the Second Restatement,
which provides that a landowner is “subject to liability” for off-premises
injuries caused by an “artificial condition” (a planted tree) which the
landowner “realizes or should realize will involve an unreasonable risk” of
harm to travelers on the public highway.
¶38 Carver does not support a general off–premises duty. Section
364, by its terms, undeniably relies on foreseeability to determine a
landowner’s “liability.” Thus, post-Gipson, § 364 cannot be used as a basis
for creating the far-reaching general duty proposed by Amicus and the
dissent.
¶39 Of course, Carver can be reconciled with Arizona law without
doing violence to Gipson. Indeed, it is well-established in Arizona that
landowners owe a duty to persons travelling on public highways adjacent
to their property. See, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 24 (1990) (stating
that an owner of livestock in open range territory owes a duty of care to
motorists travelling on a public highway); Beltran v. Stroud, 63 Ariz. 249, 253
(1945) (stating that abutting property owners must exercise their property
rights “with due regard to the safety of the public, and in such a manner as
not to interfere unreasonably with the public use of the highway”); see also
Prosser & Keeton, § 57, at 388 (“The public right of passage carries with it,
once the highway has been established, an obligation upon the occupiers of
abutting land to use reasonable care to see that the passage is safe.”). At
bottom, this duty is based on Arizona’s public policy that citizens have the
right to safe passage on a public highway. See Campbell v. Superior Court,
106 Ariz. 542, 545–46 (1971) (“In Arizona the use of the highways of this
state is a right which all qualified citizens possess subject to reasonable
regulation under the police power of the sovereign.”); Mack v. Dellas, 235
67, 71 (1955) (holding a landowner was liable for damages caused by crop
dusting to an adjacent property based on negligent trespass). Even so,
Crouse has no relevance in this case because the Family has never alleged
Reynolds committed a trespass against them.
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Ariz. 64, 66–67 ¶ 8 (App. 2014) (discussing the common-law right to safe
passage on public highways); see also A.R.S. § 13-2906(A)(1) (stating it is a
criminal offense to interfere with or obstruct passage on a public highway).
¶40 Finally, the Family urges us to impose a general duty on
landowners for off-premises injuries based on § 371 of the Second
Restatement, which provides:
A possessor of land is subject to liability for physical harm to
others outside of the land caused by an activity carried on by
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.
¶41 We generally follow the Restatement unless it conflicts with
Arizona law. Barnes v. Outlaw, 192 Ariz. 283, 285 ¶ 6 (1998). However, § 371
relies on foreseeability, and therefore cannot be used as a basis for creating
a duty. Cf. Alcombrack v. Ciccarelli, 238 Ariz. 538, 540, 544–45 ¶¶ 7, 20 (App.
2015) (stating that, based on Gipson, § 321 of the Second Restatement “is
inconsistent with current Arizona law” to the extent it relies on
foreseeability to determine duty). Indeed, the comments and illustrations
to § 371 clearly state that the only outcome-determinative factor in finding
“liability” under this section is foreseeability. Id. cmt. b and illus. 1 and 2;
see also Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 444–47, 446 n.4 (6th
Cir. 2009) (holding an employer had no duty to warn a family member
about take-home asbestos because the family member was not a foreseeable
plaintiff; and further holding that plaintiff’s reliance on § 371 of the Second
Restatement “d[id] not alter” its foreseeability analysis regarding duty
because § 371 “also incorporates foreseeability” (emphasis added)).
¶42 The Family asserts that, when considering a defendant’s
“liability” under § 371, Gipson permits us to apply this section to determine
whether a landowner has breached the standard of care or caused a
plaintiff’s injury. We agree. Plainly, Gipson does not prohibit a court from
using foreseeability to determine breach and causation. See supra ¶ 13.
However, breach and causation are not at issue in this appeal. As relevant
here, the Family cannot, in fidelity to Gipson, use § 371 to create a duty.
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Opinion of the Court
¶43 Even if we ignored the fact that § 371 is based on
foreseeability, this section does not, by its terms, create or impose a general
duty on landowners for off-premises injuries. Indeed, the dissent
recognizes that § 371 does not create such a duty. Infra ¶ 111.
¶44 Section 371 directs that a landowner is liable for injuries he
causes outside his property “under the same conditions as though the
activity were carried on at a neutral place.” The comments define “neutral
place” to mean a place “in which both the person who does the act and the
person who sustains bodily harm have an equal right or privilege or
absence of right or privilege to be.” Id. cmt. a. Such places include “a
highway, public hall or other public place,” as well as “land in the
possession of a third person.” Id.
¶45 In short, a landowner’s liability under § 371 is not limited by
the common law rules regarding a plaintiff who enters the landowner’s
property (designating the plaintiff as a licensee, invitee, or trespasser). Such
designations have no relevance in a “neutral place” where both parties have
an equal right to occupy the property. Of course, any liability under this
section presupposes that the landowner owes some recognized duty to the
plaintiff. Thus, absent a special relationship or public policy creating a
duty, § 371 does not, by itself, create a duty.
¶46 In sum, in an effort to expand the limits of a landowner’s duty
for off-premises injuries, the dissent seeks to rely on cases and Restatement
sections premised on foreseeability. To avoid the obvious conflict this
approach creates with Gipson, they recharacterize the subject cases and
Restatement sections by claiming they do not rely on foreseeability to
determine duty, but rather they support “a finding of negligence and thus
liability.” Infra ¶ 114.
¶47 There are two fundamental problems with this approach.
First, whether it falls under the general auspices of “negligence” or
“liability,” both the Family and the dissent are in fact using cases and
Restatement sections premised on foreseeability to create a new duty.
Second, by characterizing the duty analysis as one addressing “negligence”
or “liability,” they ignore duty as a separate element of a negligence claim,
and obscure the lines between duty, breach, and causation.
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Opinion of the Court
¶48 Thus, we disagree with the Family and the dissent. Duty is a
separate, material element of every negligence claim; it should not be
effectively removed as an element by merging it with the broad terms of
“negligence” and “liability.” Additionally, because Gipson has changed
Arizona law by removing foreseeability from the duty framework, we
cannot rely on foreseeability to expand the duties of landowners.
D. Other Jurisdictions
¶49 Our determination that Reynolds owed no duty to Quiroz for
secondary exposure to asbestos is consistent with decisions in other
jurisdictions. See, e.g., Riedel v. ICI Ams. Inc., 968 A.2d 17, 23 (Del. 2009)
(finding no duty to protect an employee’s daughter from secondary
exposure to asbestos because there was no special relationship between
employer and daughter); CSX Transp., Inc. v. Williams, 608 S.E.2d 208, 210
(Ga. 2005) (holding that an employer/landowner had no duty to non-
employee family members who were exposed to take-home asbestos);
Palmer v. 999 Que., Inc., 874 N.W.2d 303, 309–10 ¶¶14–17 (N.D. 2016)
(holding that employer had no duty to protect an employee’s family
member from take-home asbestos because there was no special relationship
between the family member and the employer).
¶50 In contrast, jurisdictions that have recognized a duty in take-
home asbestos cases have relied on foreseeability, a factor that is not
considered in Arizona when determining duty. See, e.g., Martin, 561 F.3d at
444–47, 446 n.4 (holding that there was no duty for an employer to warn a
family member regarding take-home asbestos under Kentucky law or
Restatement Second § 371 because the family member was not a foreseeable
plaintiff); Kesner v. Superior Court, 384 P.3d 283, 290–91, 299 (Cal. 2016)
(holding that an employer has a duty for take-home asbestos based on Cal.
Civ. Code § 1714 and California case law, which provide that foreseeability
is an “important factor” in determining duty); Schwartz v. Accuratus Corp.,
139 A.3d 84, 88–89, 92 (N.J. 2016) (recognizing duty based on foreseeability);
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 362–63 (Tenn. 2008)
(finding duty employing Third Restatement and foreseeability analysis); cf.
Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1098–99 ¶¶ 21, 27–28 (Ill.
2012) (remarking that foreseeability is “an integral factor to the existence of
duty”).
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Opinion of the Court
II.
¶51 The Family also argues that we should recognize a duty based
on the Third Restatement. Specifically, the Family cites to § 7 and to § 54,
which provides that a duty exists for 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.” See also id. § 54 cmt. b (stating that § 54
is a special application of § 7). For the reasons discussed below, we reject
the Third Restatement approach.
A. Third Restatement Duty Framework
¶52 Under the Third Restatement, duty is “ordinarily” presumed
to exist when a defendant, by his actions, creates a risk of harm to a plaintiff.
Third Restatement § 7(a). This presumed duty relieves the plaintiff of the
burden of proving duty, and requires the defendant to show that, based on
some “countervailing principle or policy,” a no-duty rule should apply to
its case. Id. § 7(b); see also id. Reporter’s Note to cmt. b (stating the “burden”
of pleading a no-duty rule is on the defendant).
¶53 In deciding whether to create a no-duty rule, courts must
“determine legislative facts necessary to decide whether a no-duty rule is
appropriate in a particular category of cases.” Third Restatement § 7 cmt.
b. This procedure requires courts, at the request of the defendant, to engage
in a multi-factored policy analysis, considering such matters as “general
social norms of responsibility” and the “overall social impact of imposing”
a duty on a “class of actors.” Id. § 7 cmts. c and i.
¶54 The Third Restatement also provides that no duty is
presumed to exist when a passive defendant, through inaction, fails to
protect a plaintiff from harm. Id. § 37. Under these circumstances, a
plaintiff bears the burden of proving a defendant had an affirmative duty
to act, i.e., to protect plaintiff from harm. See id. § 37 and cmt. b.
¶55 The purported distinction, however, between § 7 and § 37 is
illusory, because the Third Restatement defines “risk creation” so broadly
that virtually every case falls under the presumed duty of § 7. This problem
stems from the fact that, practically speaking, a defendant can increase the
risk of harm to a plaintiff by both his actions (§ 7) and by his failure to act
to protect the plaintiff from harm (§ 37). Thus, the Third Restatement
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emphasizes that risk creation is not limited to conduct that actually creates
a risk of harm but includes any conduct that might possibly increase the risk
of harm. See id. § 37 cmts. c and d; see also id. § 19 cmt. e (stating duty is
presumed where “defendant’s conduct creates or increases the possibility
of harm caused by third-party misconduct”).
¶56 Additionally, risk creation is not confined to the specific act
that causes an injury. Rather, a defendant creates a risk of harm if, at any
point during the “entire course of conduct” leading up to plaintiff’s injury,
he commits an act that “set in motion a risk of harm.” Satterfield, 266 S.W.3d
at 356–57, 364; Third Restatement § 37 cmt. c and Reporter’s Note to cmt. c.
Thus, a presumed duty exists “even though the specific conduct alleged to
be a breach of the duty of reasonable care was itself an omission.” Third
Restatement § 37 cmt. c. And in examining a defendant’s “entire course of
conduct” for possible actions creating a risk of harm, the Third Restatement
suggests the widest possible inquiry: “whether, if the actor had never
existed, the harm would not have occurred.” Id. § 7 Reporter’s Note to cmt.
l.
¶57 The illustrations provided by the Third Restatement also
demonstrate how broadly it views the concept of risk creation. For
example, furnishing a gun to another person creates a presumed duty
because it increases the possibility that someone might be shot with the gun.
See id. § 37 cmt. d. Similarly, providing alcohol to an adult social guest
creates a presumed duty because it increases the possibility the guest may
become intoxicated and injure himself or a third party. Id.; see also id. § 37
cmt. c (stating that operating a business in a high crime area increases the
risk customers may be injured; as a result, the act of opening a business in
such an area creates a presumed duty of care to any customer injured).
¶58 Additionally, the Third Restatement’s risk-creation
framework essentially gives rise to a presumed duty every time a plaintiff
is injured by a defendant. As a practical matter, by alleging that a defendant
caused his injury, a plaintiff necessarily asserts that defendant’s conduct
created a risk of physical injury. See id. § 6 cmt. f (stating that presuming a
duty of care under § 7 “is equivalent to saying that an actor is subject to
liability for negligent conduct that causes physical harm”); see also id. § 7
Reporter’s Note to cmt. b (“[W]hen a plaintiff pleads that defendant’s
negligence caused physical harm, the defendant owes plaintiff a duty of
reasonable care in the vast majority of cases.”); Satterfield, 266 S.W.3d at 377
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Opinion of the Court
(Holder, J., concurring and dissenting) (stating that under the Third
Restatement, “the existence of a duty generally would be presumed as long
as the plaintiff has alleged that he or she was harmed by the defendant’s
conduct”).
¶59 The Third Restatement also provides that foreseeability is not
a factor in determining duty. Third Restatement § 7 cmt. j. However, like
Gipson, foreseeability may be used to determine breach and causation. See
id. § 7 cmt. j and Reporter’s Note to cmt. j (breach); id. § 29 cmt. j and
Reporter’s Note to cmt. j (causation).
¶60 Unfortunately, by eliminating foreseeability and replacing it
with risk creation, the Third Restatement only generates more confusion
because, as a practical matter, the two concepts are so similar they are
difficult to distinguish. Foreseeability recognizes a duty when a defendant
realizes or should realize that he has created an unreasonable risk of harm
to a “foreseeable plaintiff.” See supra ¶ 8. Similarly, under the Third
Restatement, risk creation establishes that a duty exists when a defendant’s
conduct creates an unreasonable risk of harm to a plaintiff. See supra ¶¶ 52,
55–56; see also W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal.
L. Rev. 671, 724–25 (2008) (remarking that, to the extent one owes a duty to
avoid creating a foreseeable risk of harm to others, “[a]s a practical matter,
such a limited use of foreseeability may not be much of a departure from
the Third Restatement’s basic risk-creation standard. Although the Third
Restatement would impose a duty even where the risk created by a
defendant’s conduct was not foreseeable, most conduct in fact creates some
foreseeable risk.”).
¶61 Conceptually, however, there is one very important
difference between foreseeability and risk creation. While foreseeability
limits duty to foreseeable plaintiffs who are in the “zone of danger,” risk
creation gives rise to a vastly broader duty encompassing both foreseeable
plaintiffs and unforeseeable plaintiffs who may or may not be within the
“zone of danger.” See Third Restatement § 7 Reporter’s Note to cmt. j
(stating that under the Third Restatement, “[s]o long as the actor’s conduct
created a risk of harm,” which is “the predicate for a duty” under § 7, then
“foreseeability has no role” in determining whether a duty exists).
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Opinion of the Court
B. Duty Under Arizona Law
¶62 Arizona has not adopted the Third Restatement duty
framework. See Alcombrack, 238 Ariz. at 542 ¶ 11 (declining to adopt § 7);
Delci, 229 Ariz. at 337 ¶ 15 (same); but see Diaz, 224 Ariz. at 340 ¶¶ 21–22
(deriving guidance from, but not adopting, the Third Restatement’s duty
framework). In fact, to date, only two jurisdictions have adopted Third
Restatement § 7. See Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009);
A.W. v. Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d 907, 918 (Neb. 2010); cf.
Kesner, 384 P.3d at 304 (adopting the Third Restatement’s duty framework
but using foreseeability as a factor in determining duty). At least one court
outside Arizona has expressly rejected it. See Riedel, 968 A.2d at 21.
¶63 The Third Restatement’s duty framework uses a “different
conceptual approach” than Arizona’s. Gipson, 214 Ariz. at 147–48 ¶¶ 33–35
(Hurwitz, J., concurring). Undeniably, there are major differences between
the Third Restatement’s duty framework and Arizona’s framework. In
contrast to the Third Restatement, Arizona does not use risk creation to
determine duty. Instead, with the elimination of foreseeability, we base
duty solely on special relationships and public policy. See supra ¶¶ 11–12,
14. And, unlike the Third Restatement, we determine duty before a
defendant, by his acts or omissions, places a plaintiff at risk of physical
injury. See supra ¶¶ 14–15, 25–45; see also Petolicchio v. Santa Cruz Cty. Fair
& Rodeo Ass’n, 177 Ariz. 256, 261 (1994) (“The question is whether the
relationship of the parties was such that the defendant was under an
obligation to use some care to avoid or prevent injury to the plaintiff.”
(quoting Markowitz, 146 Ariz. at 356)). Additionally, Arizona does not
presume duty; rather, in every negligence case, the plaintiff bears the
burden of proving the existence of a duty. Gipson, 214 Ariz. at 143 ¶ 9;
Vasquez, 220 Ariz. at 311 ¶ 21.
¶64 None of the cases cited by the Family or the dissent support
their contention that Arizona, like the Third Restatement, presumes a duty
when a defendant creates a risk of harm. The Family’s reliance on Ontiveros
for this proposition is misplaced. In Ontiveros, we addressed the harm
caused by drunk drivers and noted that courts from other jurisdictions had
also expressed concerns about this problem. 136 Ariz. at 508–09. In this
context, we referenced the following statement made by the Alaska
Supreme Court in Nazareno v. Urie, 638 P.2d 671 (Alaska 1981): “a vendor is
under a duty not to sell liquor where the sale creates a risk of harm to the
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Opinion of the Court
customer or to others. This conclusion flows from general principles of
negligence law; every person is under a duty to avoid creating situations
which pose an unreasonable risk of harm to others.” Ontiveros, 136 Ariz. at
509 (quoting Nazareno, 638 P.2d at 674 ); see also Nunez v. Prof’l Transit Mgmt.
of Tucson Inc., 229 Ariz. 117, 121 ¶ 17 (2012) (quoting Ontiveros, 136 Ariz. at
509).
¶65 Ontiveros’s citation to Nazareno should not be read out of
context. Ontiveros did not recognize the existence of a presumed duty based
on risk creation. Rather, Ontiveros addressed the issue of duty by using
Arizona’s well-established duty framework: special relationships and
public policy. Thus, Ontiveros held that, based on a statute, a duty existed
on public policy grounds. 136 Ariz. at 509–11. In addition, Ontiveros
recognized a duty based on the special relationship existing between a
licensee and a patron. We stated that “[d]uty is a concept which arises out
of the recognition that relations between individuals may impose upon one a
legal obligation for the benefit of the other,” and that “changing social
conditions require recognition of a duty which extends to innocent third
parties and which is based on the relation of the licensed supplier of liquor and
his patron.” Id. at 508 (emphasis added). We emphasized that such a duty
is based on “the obligation of a licensee to help control the conduct of others
who are patrons of his establishment. Such duties are recognized where a
special relationship exists between the actor and the third person.” Id. at 511 n.4
(emphasis added) (citation and internal quotation marks omitted).
¶66 The Family also conflates cases recognizing a duty based on a
negligent undertaking with the Third Restatement’s risk-creation
framework. A duty based on a negligent undertaking does not arise solely
because a defendant committed an act that might harm someone. Rather,
a duty based on a negligent undertaking exists when a person, who
otherwise owed no duty to plaintiff, voluntarily agrees to provide services
for another person; under such circumstances, the person assumes a duty
to exercise reasonable care in providing those services. Second Restatement
§ 323.
¶67 Thus, in Stanley, we held that a radiologist paid by an
employer to review a job applicant’s x-rays for a pre-employment exam
assumed a duty of reasonable care to the applicant in reading her x-rays.
208 Ariz. at 223–24 ¶¶ 14–15. Similarly, in Grimm v. Arizona Board of Pardons
and Paroles, 115 Ariz. 260, 267 (1977), this Court held that a state agency
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Opinion of the Court
assumed a duty, pursuant to a statute, to protect the public from highly
dangerous persons released from prison custody. We reached a similar
result in Cummings v. Henninger, 28 Ariz. 207, 211–12, 214 (1925). There, a
business owner built a sidewalk in front of his business and for ten years
maintained sole responsibility for repairing it. Id. at 209–10. When a
traveler fell and was injured on the sidewalk, we held that by “[h]is
voluntary assumption of the undertaking” the business owner had a duty to
maintain the sidewalk in a safe condition. Id. at 211–12, 214 (emphasis
added); see also Alhambra Sch. Dist., 165 Ariz. at 42 (concluding that school
assumed a duty of care by voluntarily undertaking to provide protection at
a street crossing).
¶68 The Family and the dissent err by placing undue emphasis on
the broad language from Ontiveros (the “duty to avoid creating situations
which pose an unreasonable risk of harm”). Supra ¶ 64. As noted above,
Ontiveros itself did not create a duty based on this language. See supra
¶¶ 64–65. Likewise, none of the cases cited by the Family and the dissent
actually base the existence of a duty on this language. For example, in
Gipson, we stated (in a footnote) that “one could conclude that people
generally owe a duty to exercise reasonable care to avoid causing physical
harm to others.” 214 Ariz. at 146 ¶ 24 n.4 (citation and internal quotation
marks omitted). However, we did not base the existence of a duty on risk
creation; rather, we determined that duty existed based on public policy.
Id. at 146 ¶¶ 25–26. Likewise, in Nunez, although we referenced the same
general language from Ontiveros, we based the existence of duty on the
special relationship existing between a common carrier and a passenger.
229 Ariz. at 121 ¶ 17; cf. Crouse, 77 Ariz. at 365–66 (discussing foreseeability
as a factor in determining duty but basing duty on a negligent trespass).
¶69 Additionally, Martinez v. Woodmar IV Condominiums
Homeowner’s Ass’n, 189 Ariz. 206 (1997) does not, as the dissent contends,
stand for the proposition that a landowner’s duty is based on “its conduct
irrespective of any duty to control [a] third party.” See infra ¶ 95. Rather,
Martinez stated that landowners’ duties are relational and are not
determined by the landowner’s specific conduct in a given case. Martinez,
189 Ariz. at 211. Specifically, this Court held that a condominium
association, as the possessor of the common areas in a condominium
complex, “had a relationship, similar to that of a landlord, with unit owners,
their tenants, and persons on the land with consent and permission to use
the common areas,” and that relationship required the condominium
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Opinion of the Court
association “to use reasonable care to avoid causing the injury to those it
permitted to use the property under its control.” Id. We concluded that
“[t]he relationship between [the condominium association], its unit owners,
and persons given permission to enter the common areas thus imposed an
obligation on Defendant to take reasonable precautions for the latter’s
safety.” Id. (emphasis added).
¶70 Finally, the dissent argues that Arizona, by adopting Second
Restatement § 302, “anticipates” the risk-creation approach used by the
Third Restatement. See infra ¶ 121. Specifically, the dissent argues that
§ 302 demonstrates that both the Second Restatement and the Third
Restatement presume a duty exists when a defendant, by his affirmative
actions, creates a risk of harm to a plaintiff. Infra ¶ 121.
¶71 We disagree. As a preliminary matter, § 302 addresses
whether a defendant’s conduct violates the standard of care (breach), not
duty. See Second Restatement § 302 cmt. a (“This Section is concerned only
with the negligent character of the actor’s conduct, and not with his duty to
avoid the unreasonable risk.”).
¶72 But more importantly, § 302 does not, by its terms, create a
presumed duty of care based on a defendant’s affirmative acts. Rather, § 302,
like all duties under the Restatement Second, hinges on proof of
foreseeability. Id. § 302 cmt. a; see also Prosser & Keeton, § 43, at 285 (noting
that the Restatement of Torts adopted foreseeability as a basis for duty); see
Fedie v. Travelodge Int’l, Inc., 162 Ariz. 263, 265–66 (App. 1989) (discussing
the existence of duty based on Second Restatement §§ 302 and 302B, and
noting that both sections rely on foreseeability to determine duty); City of
Tucson v. Wondergem, 6 Ariz. App. 570, 576 (1967) (stating that Second
Restatement § 302 cmt. g is based on the “doctrine of foreseeability”);
Satterfield, 266 S.W.3d at 355 (noting that Second Restatement §§ 284 and
302 rely on foreseeability in determining duty); see also Brown v. United
States, 514 F. Supp. 2d 146, 152–53 (D. Mass. 2007) (citing Second
Restatement § 302 cmt. a as a basis for duty, stating that “[t]he duty of care
derives from the foreseeability of the harm caused to others by a
defendant’s acts or omissions”); Leppke v. Segura, 632 P.2d 1057, 1059 (Colo.
App. 1981) (referencing Second Restatement § 302 cmt. a as a basis for duty
and holding that “[t]he duty to exercise reasonable care extends only to
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Opinion of the Court
foreseeable damages and injuries to foreseeable plaintiffs”) 5; Jupin v. Kask,
849 N.E. 2d 829, 835 (Mass. 2006) (stating that as “[a] precondition” to the
duty set forth in Second Restatement § 302 cmt. a, “the risk of harm to
another [must] be recognizable or foreseeable to the actor”); cf. Second
Restatement § 314 cmt. d (referencing § 302 cmt. a and therefore, by
implication, basing duty on foreseeability).
¶73 Given the fact that Gipson rejects foreseeability as a factor in
determining duty, § 302 cannot, consistent with our law, provide a source
for duty.
C. Rejection of Third Restatement
¶74 The Third Restatement unquestionably provides a “different
conceptual approach” to duty. See supra ¶ 63; Gipson, 214 Ariz. at 147–48
¶¶ 33–35 (Hurwitz, J., concurring). Thus, by urging us to adopt the Third
Restatement, the Family and the dissent are urging us to change our duty
framework. For the reasons discussed below, we think such a drastic
change is both unwise and unwarranted.
¶75 The primary flaw in the Third Restatement’s risk-creation
framework is that it effectively creates a presumed duty of care owed by all
people at all times. See supra § II(A). It does this in two ways. First, apart
from a general admonition to do nothing to create a risk of harm to “others”
— which of course, encompasses almost anything that we do — the Third
Restatement provides no fixed rights or obligations. Such a duty
framework, however, fails to answer the difficult question underlying duty:
to whom does a person owe a duty? Rather than answering this question,
the Third Restatement avoids it by stating a duty is owed to everyone all
the time.
¶76 Avoiding this issue does not resolve it. As Prosser & Keeton
note, “The rule that you are to love your neighbor becomes in law, you must
not injure your neighbor; and the lawyer’s question, . . . . Who, then, in law
is my neighbor?” Prosser & Keeton, § 53, at 358 (citation and internal
quotation marks omitted). In answering this question, we cannot provide
any meaningful guidance to courts and practitioners without defining the
5The annotations to Second Restatement § 302, cmt. a note that Leppke
mistakenly cited § 320 rather than § 302. Second Restatement, case citations
by jurisdiction.
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Opinion of the Court
rights and obligations of the parties before a plaintiff is injured. In short,
we recognize that “before negligence can be predicated [on] a given act, [in]
back of the act must be sought and found a duty to the individual
complaining.” Palsgraf, 162 N.E. at 99–100; see also Prosser & Keeton, § 53,
at 356 (stating that duty is an obligation a defendant owes “for the benefit
of the particular plaintiff” (emphasis added)); Pollock, Law of Torts, p. 468
(13th ed. 1920) (“[N]egligence does not exist in the abstract, it contemplates
a legal duty owing from one party to another.”).
¶77 Thus, in Arizona we have sought, by means of special
relationships and relationships created by public policy, to define the rights
and obligations of the parties before a defendant, by his acts or omissions,
places a plaintiff at risk of physical injury. See supra ¶¶14–15, 63; Markowitz,
146 Ariz. at 356 (stating that a duty exists when “the relationship of the
parties was such that the defendant was under an obligation to use some
care to avoid or prevent injury to the plaintiff”). This framework, even with
its flaws, has been carefully worked out by our courts for many years and
provides a workable, useful approach to determining duty.
¶78 By presuming a duty is owed to everyone, the Third
Restatement eliminates duty as a separate element of a negligence claim.
Under the risk-creation framework, duty exists whenever a plaintiff suffers
an injury; as a result, the issue of duty is subsumed by causation. See supra
¶ 58. Additionally, by focusing on a person’s conduct, or how a person acts,
the Third Restatement conflates duty with the standard of care.
¶79 The dissent demonstrates this flaw in the Third Restatement
approach by arguing that Reynolds owed a duty to Quiroz because the
“manner” in which it “operat[ed]” its factory created a risk of exposing
Quiroz to take-home asbestos. See infra ¶ 95. But the manner in which
Reynolds operated its plant addresses the issue of how Reynolds should
have acted, not whether Reynolds owed a duty to Quiroz in the first place.
As Prosser & Keeton state:
It is better to reserve “duty” for the problem of the relation
between individuals which imposes upon one a legal
obligation for the benefit of the other, and to deal with
particular conduct in terms of a legal standard of what is
required to meet the obligation . . . . What the defendant must
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Opinion of the Court
do, or must not do, is a question of the standard of conduct required
to satisfy the duty.
Prosser & Keeton, § 53, at 356 (emphasis added); see also Martinez, 189 Ariz.
at 211 (holding that duty is based on the relations between individuals and
should not be equated with the specific details of a party’s conduct);
Markowitz, 146 Ariz. at 355 (“[T]he existence of a duty is not to be confused
with details of the standard of conduct.”).
¶80 Creating a tort law system based on a presumed duty owed
by everyone all the time carries with it serious consequences. As an initial
matter, limitless duties expand tort liability beyond manageable bounds.
¶81 The present case illustrates this point. Under the Third
Restatement approach, Reynolds would have owed a presumed duty of
care to any person that Father encountered after leaving the plant
(assuming, of course, that Father was carrying asbestos fibers on his
clothes). As a result, Reynolds would have owed a presumed duty of care
to Father’s neighbors and friends, babysitters and cab drivers, waiters and
bartenders, dentists and physicians, and fellow church members. If the
asbestos fibers were transferred to the clothes of Father’s children, then the
presumed duty of care would have extended to the children’s playmates,
schoolmates, and teachers. And of course, if each person contacted by
Father or his family members transferred asbestos fibers to other third
parties, then Reynolds’ presumed duty would have expanded to an even
wider circle of potential plaintiffs.
¶82 Other courts addressing take-home asbestos illustrate these
concerns about the limitless scope of such a duty. For example, Satterfield,
which adopted the Third Restatement duty approach in combination with
foreseeability, acknowledged that an employer’s liability for take-home
asbestos would extend “to those who regularly and repeatedly come into
close contact with an employee’s contaminated work clothes over an
extended period of time, regardless of whether they live in the employee’s
home or are a family member.” 266 S.W.3d at 374; see also In re Certified
Question from the Fourteenth Dist. Ct. of App. of Tex., 740 N.W.2d 206, 219–21
(Mich. 2007) (expressing concern that recognizing an employer’s duty for
take-home asbestos would expose an employer to a “limitless pool of
plaintiffs” encompassing anyone who came into contact with an employee
while he was wearing his work clothes); In re New York City Asbestos Litig.,
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Opinion of the Court
840 N.E. 2d 115, 122 (N.Y. 2005) (stating that finding duty in take-home
asbestos cases would create “limitless liability” for employers, extending
duty to a babysitter or laundry worker who washes the employee’s clothes).
¶83 The dissent contends, however, that adopting the Third
Restatement would not lead to limitless liability because § 7(b) allows
courts to create “no-duty” rules. See infra ¶ 115. While true, the burden of
proving a no-duty rule rests squarely on the shoulders of the defendant.
Moreover, defendants seeking relief from the presumed duty of care face a
daunting task; they must convince a court that, in their cases, a no-duty rule
is justified based on “general social norms of responsibility” and the
“overall social impact” of imposing such a no-duty rule. See supra ¶ 53.
Moreover, such a procedure is at odds with the judicial restraint we exercise
in declaring public policy. See supra ¶¶ 18–19.
¶84 The dissent also claims that even with a presumed duty, a
plaintiff must still prove breach and causation to impose liability on a
defendant. See infra ¶ 115. Of course, this ignores the fact the Third
Restatement creates a limitless duty owed by a defendant to the whole
world. As Prosser & Keeton note, “[Duty] is embedded far too firmly in
our law to be discarded, and no satisfactory substitute for it, by which the
defendant’s responsibility may be limited, has been devised.” Prosser &
Keeton, § 53, at 358. Plainly, presuming duty effectively creates the risk of
unlimited liability because “[i]t throws the question of any limitation back
into the morass of ‘proximate cause’ and the search for some reasonably
close connection between the defendant’s conduct and the injury.” Id. § 43
at 287; see also Third Restatement § 29 and cmts. a and f (stating that apart
from creating a no-duty rule under § 7(b), factual cause, formerly known as
proximate cause, is the Third Restatement’s means of limiting a defendant’s
liability).
¶85 The Third Restatement’s limitless duty also distorts the tort
law’s goals of compensating injured parties and deterring negligent
conduct. See Prosser & Keeton, § 4, at 20–26. Unlike the Third Restatement
approach, we have never held that every defendant is automatically subject
to tort liability whenever its negligence causes an injury to a plaintiff.
Rather, before a plaintiff can seek compensation from a defendant, he must
first show the defendant owed him a duty to prevent or avoid the injury in
the first place. Markowitz, 146 Ariz. at 356; see Hafner v. Beck, 185 Ariz. 389,
391 (App. 1995) (“One who engages in negligent conduct is not
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Opinion of the Court
automatically subject to potential legal liability. Rather, there first must be
a duty recognized by law.”); see also Palsgraf, 162 N.E. at 99–101 (“Proof of
negligence in the air, so to speak, will not do. . . . One who seeks redress at
law does not make out a cause of action” by merely showing he has been
injured, or that another has engaged in wrongful conduct; rather, “plaintiff
must show . . . ‘a wrong’ to herself; i.e., a violation of her own right, and not
merely a wrong to some one else, nor conduct ‘wrongful’ because unsocial,
but not ‘a wrong’ to any one.” (internal citation and quotation marks
omitted)).
¶86 Similarly, imposing a limitless tort duty on society may well
deter negligent behavior, but it leaves little room for individual liberty and
personal autonomy. Under such a framework, there are no fixed rights or
duties prescribing a person’s responsibilities before they act. Rather, every
act a person or business engages in exposes them to tort liability.
¶87 The dissent contends, however, that the Third Restatement’s
duty framework reflects “the common law understanding of duty.” Infra
¶ 129. In support of this assertion, it offers the hypothetical case of a person
swinging a golf club. According to the dissent, when a person swings a golf
club, such an action creates a duty “to persons thereby exposed to the risk
of physical injury.” See infra ¶ 94.
¶88 We agree a duty exists, but not based on the Third
Restatement’s concept of risk creation. Rather, a duty exists based on either
a special relationship or a public-policy-created relationship between the
golfer and those within reach of his club. 6 One does not have to look far to
6 To the extent the hypothetical reflects the “common law understanding
of duty,” such an understanding would, of course, incorporate the concept
of foreseeability in determining the existence of a duty. However, because
the Third Restatement relies solely on risk creation and it prohibits using
foreseeability to determine duty, the act of swinging a golf club would give
rise to a duty that was not contemplated by the common law. Specifically,
the hypothetical presumes a duty exists as to unforeseeable plaintiffs
outside the zone of danger of the golf club, e.g., a duty owed to a plaintiff
ten miles away. See supra ¶¶ 8, 59–60; Third Restatement § 7 cmt. j. In short,
unlike the common law, the Third Restatement would presume a limitless
duty exists to everyone simply because the defendant started swinging a
golf club.
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Opinion of the Court
find a criminal statute prohibiting a person from recklessly assaulting
strangers with a dangerous instrument. See A.R.S. § 13-1203(A) (stating it
is a crime to assault another person); A.R.S. § 13-1204(A)(2) (stating it is a
felony offense to assault a person with a dangerous instrument); see also
A.R.S. § 13-105(12) (defining “dangerous instrument”).
¶89 Of course, it would be “simpler” if everyone owed a legal
duty of care to all people at all times. Doubtless, if such a general duty
existed, courts would not have to grapple with the issue of duty at all. But
“[l]ife will have to be made over, and human nature transformed” before
such a duty could “be accepted as the norm of conduct, the customary
standard to which behavior must conform.” Palsgraf, 162 N.E. at 100. Such
a limitless duty framework is impractical, unmanageable, and has never
been the law in this state. We therefore reject the Third Restatement
approach.
CONCLUSION
¶90 We hold Reynolds had no duty to protect Quiroz from
exposure to take-home asbestos. No special relationship existed between
Reynolds and Quiroz, and no duty existed based on public policy.
Additionally, because we reject the duty framework contained in the Third
Restatement, no duty exists on that basis. As a result, although we agree
with the court of appeals’ ultimate holding, because we disagree, in part,
with its reasoning, we vacate its opinion. We affirm the superior court’s
grant of summary judgment in favor of Reynolds.
30
QUIROZ V. ALCOA
CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
BALES, C.J., joined by PELANDER, V.C.J., as to parts I and II, dissenting:
¶91 The majority holds that an employer who knew its workers
were being exposed to toxic asbestos dust on the job and failed to warn
them or provide reasonable protective measures, such as overalls, showers,
or changing facilities, owed no duty of care to children who developed
mesothelioma from dust carried home in their parents’ work clothes.
Although the employer created the risk of physical harm - and failed to
warn its employees or the persons ultimately injured - the majority
concludes that the employer must be immunized from even the prospect of
liability, no matter how reckless or otherwise unreasonable its conduct may
have been. This result, the majority contends, serves to protect the
employer’s “individual liberty.” Supra ¶ 86. One would think the children
had a greater right to be free from others unreasonably exposing them to
risks of debilitating and life-threatening illness.
¶92 Our tort law generally does not privilege those who expose
others to unreasonable risks of physical injury, but instead seeks to
compensate those who are harmed by such conduct. Recognizing a duty
here - which does not mean that the employer is necessarily liable or that
all persons owe a duty to others at all times - comports with Arizona
caselaw, § 371 of the Second Restatement, and § 7 of the Third Restatement.
Accordingly, I respectfully dissent.
I.
¶93 Arizona courts routinely discuss two sources of duty: special
relationships and public policy. Although the majority strains to narrowly
delimit these sources, this Court has defined both broadly. See Gipson v.
Kasey, 214 Ariz. 141, 145 ¶ 18 (2007) (“Duties of care may arise from special
relationships based on contract, family relations, or conduct undertaken by
the defendant.”); Stanley v. McCarver, 208 Ariz. 219, 226 ¶ 22 (2004) (“[D]uty
emanates from the panoply of social concerns that generally inform tort
law.”); id. at 221 ¶ 6 (“To determine whether a duty exists, courts examine
several sources, including the state’s statutes and controlling cases.”);
Ontiveros v. Borak, 136 Ariz. 500, 508 (1983) (observing that “duty”
essentially is “an expression of the sum total of those considerations of
policy which lead the law to say that the particular plaintiff is entitled to
31
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
protection” (quoting W. Prosser, Handbook on the Law of Torts § 53, at 324-27
(4th ed. 1971))).
¶94 As a general rule, an actor owes a duty of reasonable care
when engaging in activities that expose others to risks of physical harm. See
Restatement (Second) of Torts § 302 cmt. a (Am. Law Inst. 1965) (“Second
Restatement”) (noting duty to refrain from affirmative acts that involve an
unreasonable risk of harm to another). If an individual “acts at all, [he or
she] must exercise reasonable care to make his [or her] acts safe for others.”
Id. § 4 cmt. b. But our tort law imposes duties more narrowly with regard
to protecting persons from risks created by others. See id. § 315 (noting there
is no duty to control a third person to prevent physical harm absent
circumstances, including special relationships, that may give rise to duty of
control or right of protection). This distinction is illustrated by a simple
example: a person swinging a golf club while walking on a sidewalk owes
a duty of care to persons thereby exposed to the risk of physical injury. But
a bystander would generally not have any duty to warn or otherwise
protect others from the person swinging the club absent some special
relationship giving rise to a right to protection.
¶95 The majority errs by refusing to recognize that the risk of
physical injury here was created by the employer’s manner of operating its
factory - exposing its workers without warning to toxic asbestos dust and
failing to provide any workplace protective measures, which resulted in the
diffusion of the dust beyond the employer’s premises. The employer’s own
risk-creating conduct suffices to create a duty of care, regardless whether
the employer may have otherwise been in a “special relationship” with the
injured parties that gave them a right to protection from risks created by
third parties. See Martinez v. Woodmar IV Condominiums Homeowners Ass’n,
189 Ariz. 206, 208 (1997) (recognizing duty of possessor of land with respect
to its conduct irrespective of any duty to control third party); see also
Cummings v. Henninger, 28 Ariz. 207, 214 (1925) (recognizing a person’s
“duty to exercise due care to afford reasonable protection” in “regulating
his conduct in the many contacts he makes in his daily life with his fellow-
creatures”); Second Restatement § 314 cmt. d (recognizing that when peril
results from forces under actor’s control, a duty to act to protect another
does not require special relationship).
32
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
II.
¶96 Recognizing the employer’s potential liability here comports
with both this Court’s caselaw and § 371 of the Second Restatement. This
Court has long recognized that a landowner owes a duty to individuals off-
premises who may be harmed by the landowner’s on-premises activity.
¶97 For example, in Crouse, the Court recognized that a cotton
farmer owed a duty of care to not harm a neighboring farmer’s cantaloupe
fields when crop dusting his cotton fields. Crouse v. Wilbur-Ellis Co., 77 Ariz.
359, 365-66 (1954). The cotton farmer’s prospective liability, the Court held,
was a sufficient risk of harm to justify imposing a duty of care on the
insecticide supplier that advised the cotton farmer on the dusting. Id.
Crouse observed:
The whole modern law of negligence, with its many
developments, enforces the duty of fellow-citizens to observe
in varying circumstances an appropriate measure of
prudence to avoid causing harm to one another. The
situations in which we are under no such duty appear at this
day not as normal, but as exceptional. A man cannot keep
shop or walk into the street without being entitled to expect
and bound to practice observances in this kind.
77 Ariz. at 365 (quoting P.A. Landon, Pollock’s Law of Torts 17 (15th ed.
1951)).
¶98 Then, in Carver, this Court adopted § 364 of the Second
Restatement, which states that “[a] possessor of land is subject to liability to
others outside the land for physical harm caused by a structure or other
artificial condition on the land, which the possessor realizes or should
realize will involve an unreasonable risk of such harm.” Carver v. Salt River
Valley Water Users’ Ass’n, 104 Ariz. 513, 517 (1969). Viewing Crouse and
Carver together, this Court has recognized that landowners owe a duty of
care to others off their property - whether harmed by artificial conditions
or activity occurring on the landowner’s premises.
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QUIROZ V. ALCOA
CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
¶99 Furthermore, in MacNeil, the Court extended the attractive
nuisance doctrine to encompass children injured off the landowner’s
property. MacNeil v. Perkins, 84 Ariz. 74, 78-79 (1958). There, two children-
trespassers removed dynamite caps from a mine on the landowner’s
property and were later injured by a creek when they set the caps on fire.
Id. A third child, who did not participate in the trespassing and taking of
the dynamite caps, was also injured in the explosion. Id. The Court held
that the intervention of the children carrying the dynamite caps and giving
them to a third child did not defeat the landowner’s liability. Id. at 83-84.
Although dealing with the attractive nuisance doctrine, MacNeil illustrates
that a landowner’s duty of reasonable care can extend to third parties
injured when entrants remove and transport the landowner’s risk of harm
off-premises. See id. at 84-85 (approving jury instructions characterizing
attractive nuisance as a form of negligence).
¶100 Lastly, in the most factually analogous situation to this case,
our court of appeals recognized a landowner’s duty to persons harmed by
asbestos carried off the landowner’s land. In Burns, residents of a trailer
park sued a landowner for personal injuries and property damage based on
theories of negligence, strict liability, and nuisance because the wind blew
asbestos fibers from the landowner’s mill onto a trailer park, thereby
exposing the residents to asbestos. Burns v. Jaquays Mining Corp., 156 Ariz.
375, 376-77 (App. 1987). None of the plaintiffs had been diagnosed as
having asbestosis, and the trial court granted summary judgment on all
counts except one seeking property damages. Id. at 377. The court of
appeals affirmed the dismissal of the negligence claims because the
plaintiffs had not manifested bodily injuries, while reversing summary
judgment on nuisance claims seeking damages for the “disruption and
inconvenience” caused by the asbestos contamination and a claim for
damages for medical monitoring. Id. 378-80.
¶101 The majority attempts to discount Burns by observing that the
decision addressed damages; the “court never determined, expressly or
impliedly, that the mill owner owed a duty to the residents as to airborne
asbestos,” and that negligence claims are distinct from nuisance claims.
Supra ¶ 34. These arguments misapprehend the significance of Burns. The
court of appeals upheld the claim for damages for medical monitoring, and
such a claim presumes a duty of reasonable care by the mill operator,
whether the claim is based on negligence or nuisance. Burns did not specify
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QUIROZ V. ALCOA
CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
the basis for the medical monitoring damages, but such a claim generally is
grounded in the defendant’s negligence. See In re Paoli R.R. Yard PCB
Litigation, 916 F.2d 829, 852 (3d Cir. 1990); Hanson v. Mountain Fuel Supply
Co., 858 P.2d 970, 979 (Utah 1993).
¶102 But even if Burns approved recovery for medical monitoring
based on the mill operator’s creating a nuisance, a claim for nuisance
reflects the duty of a possessor of land to “[s]o use your own property as
not to injure the rights of another.” United Verde Extension Mining Co. v.
Ralston, 37 Ariz. 554, 561 (1931) (internal quotations and citation omitted).
Consistent with this observation, our nuisance cases have long recognized
that possessors of land may be liable for conduct on their property that
unreasonably invades others’ use and enjoyment of their land. Id.
(affirming damages from discharge of smelter smoke and poisonous gases
carried by wind to other property); see also Armory Park Neighborhood Ass’n
v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 7 (1985) (noting that “the law
requires our neighbors to keep their activities within the limits of what is
tolerable by a reasonable person”); Second Restatement § 822 (recognizing
nuisance liability for unintentional invasions of another’s use of property if
“otherwise actionable under the rules controlling liability for negligence or
reckless conduct”).
¶103 This litany of cases demonstrates that Arizona law has
expressly acknowledged that a landowner’s duty of care does not just
encompass those who are on his or her premises or otherwise have some
“special relationship” to the landowner. Rather, such a duty can extend to
persons injured off the landowner’s property, whether or not the
landowner had some pre-existing “special relationship” with them other
than the conduct creating the risk of harm.
¶104 The majority unconvincingly seeks to distinguish these cases
based on the nature of the parties or their claims, supra ¶¶ 34-39, or to
discount them as basing duty on foreseeability. Pre-Gipson cases such as
Crouse often conflate discussions of duty with the standard of care (which
frequently turns on foreseeability), but that fact does not support denying
the existence of duty, but instead recognizing that “[d]uty in a given
situation is commensurate with the dangers involved.” Crouse, 77 Ariz. at
365. The duties recognized in Crouse did not evaporate when Gipson
clarified that foreseeability does not determine whether a defendant may
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QUIROZ V. ALCOA
CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
ever be liable for unreasonably creating risks of harm (the “duty” question),
but instead concerns whether a particular defendant acted unreasonably
(failed to meet the standard of care) or proximately caused injury.
¶105 The majority discounts Carver as turning on the “right” to safe
travel on public highways, supra ¶ 39, but does not explain why there is no
“right” to be free from being unreasonably (and unknowingly) exposed to
lethal risks within one’s home rather than the highway. (Of course, the duty
to drive with reasonable care applies even when one drives on private
property, such as a shopping center parking lot, and is not limited to those
with whom the driver has a “special relationship” or to the driver’s
complying with traffic laws.) And even if a duty of care here must be
grounded on public policy, that requirement is met by Arizona’s
longstanding common law principle that persons must act reasonably
when they create risks of physical injury to others, see, e.g., Nunez v. Prof’l
Transit Mgmt. of Tucson, Inc., 229 Ariz. 117, 121 ¶ 17 (2012); Cummings, 28
Ariz. at 214, a policy that is also reflected in our state constitution’s
protecting the right to recover damages for injuries and limiting defenses
that effectively relieve a defendant of any duty of care, see Ariz. Const. art.
18, §§ 5, 6; 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 205-06 ¶¶ 22-
31 (2008) (discussing purpose of article 18, section 5).
¶106 Arizona’s case law recognizing a landowner’s duty to those
injured by on-premises activity is consistent with § 371 of the Second
Restatement, which also supports imposing potential liability on Reynolds.
Section 371 provides:
A possessor of land is subject to liability for physical harm to
others outside of the land caused by an activity carried on by
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.
¶107 Nothing about § 371 is novel. Rather, it reflects a long-
accepted common law rule that a landowner’s duty of care extends to others
off the land who are physically harmed by activity occurring on the land.
As Prosser and Keeton note:
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QUIROZ V. ALCOA
CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
The possessor of land is first of all required to exercise
reasonable care, with regard to any activities which he carries
on, for the protection of those outside of his premises. He may
be liable if he blows a whistle where it will frighten horses in the
street, or operates a barrel hoist which is dangerous to adjoining
property, or runs a factory so that it gives out unnecessary noise
or smoke.
Prosser & Keeton, The Law of Torts § 57, at 387 (5th ed. 1984); see also Richard
A. Epstein, Torts § 12.1, at 310 (1999) (discussing a landowner’s duty of care
for any dangerous, artificial conditions on his premises “whose
consequences spill over beyond the boundaries of the property”). In fact,
the principles underlying § 371 are reiterated throughout the Second
Restatement. See, e.g., Second Restatement § 302 cmt. c., illus. 1 (“A sets a
fire on his own land, with a strong wind blowing towards B’s house.
Without any other negligence on the part of A, the fire escapes from A’s
land and burns down B’s house. A may be found negligent toward B in
setting the fire.”). Thus, at common law, a landowner’s duty of care did not
end at his property line.
¶108 Section 371 and the common law reflect common sense. If
Dottie played baseball on her property and hit Kit, Dottie’s duty of care
should not be defeated simply because Kit was not on Dottie’s property.
See Richard A. Epstein, Torts § 12.1, at 310 (1999) (“Thus if D allows baseball
to be played on his land, then liability for negligence may attach if
insufficient precautions are taken to keep the ball from leaving the field.”).
Although a landowner may use his land for his own benefit, this privilege
is “bounded by principles of reasonableness.” See Prosser & Keeton, supra
¶ 107, § 57 at 386. One owes a duty to exercise reasonable care when
engaging in activity on one’s property. Id.
¶109 Just as Reynolds owes a duty of care to ensure that the wind
does not blow asbestos dust from its factory to Quiroz’s home, Reynolds
should likewise owe a duty of care to ensure that its employees do not carry
the asbestos dust there. See Dan B. Dobbs, Paul T. Hayden & Ellen M.
Bublick, The Law of Torts § 272 (2d ed. 2011) (observing that the idea
reflected in § 371 “justifies liability for negligently allowing workers on the
land to carry dangerous substances like asbestos dust off the land to the
injury of others”); cf. MacNeil, 84 Ariz. at 84 (holding that landowner’s duty
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QUIROZ V. ALCOA
CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
extends to third parties injured when entrants remove and transport the
risk of harm off-premises). In fact, recognizing such a duty may make more
sense because Reynolds might more easily control the diffusion of asbestos
off-premises by its employees than by shifting air currents.
¶110 Quiroz does not seek to impose a duty on Reynolds to control
a third party; nor does he seek to impose a broad duty owed by Reynolds
to the public at large. Reynolds’s relevant conduct was releasing asbestos
and not containing it within its facility. Based on the summary judgment
record before us, Reynolds failed to even warn its workers, much less afford
them a means to prevent their carrying home asbestos dust in their clothing.
Thus, the determination of liability should not turn on whether the injury
was caused by wind-borne asbestos, employee-borne asbestos, or an errant
fly ball; a landowner owes a duty of care when it exposes others to risks of
injury, even when the harm occurs off-premises, and may be liable under
§ 371 if a plaintiff establishes that section’s prerequisites.
¶111 The majority observes that § 371 “does not . . . create . . . a
general duty on landowners for off-premises injuries.” Supra ¶ 43. To be
sure, § 371 does not itself create an independent source of duty; rather, it
clarifies that those in possession of land have the same liability to others for
their activities on that land as they would have if those activities were
conducted in a neutral place, such as a highway. See Second Restatement
§ 371 cmt. a. That is, liability in these circumstances flows not from one’s
status as a landowner but from conduct creating an unreasonable risk of
physical injury that proximately causes injury. For example, a landowner
whose on-site activity unreasonably releases toxic waste that injures others
off-site is liable just as the landowner would be for releasing it while
transporting it on a public highway. (The cases from “other jurisdictions”
cited by the majority, supra ¶ 49, do not consider § 371.)
¶112 The majority errs by arguing that § 371 cannot support the
imposition of liability on Reynolds because the Second Restatement bases
duty on foreseeability and Gipson rejected that approach. Supra ¶¶ 42-43.
Duty under the Second Restatement does not depend on foreseeability;
instead, people generally are under a duty of care with respect to their
affirmative acts. Supra ¶ 94. That “duty” imposes a standard of care, i.e.,
acting as a reasonable person with respect to recognizable risks. See Second
Restatement § 291. Under the Second Restatement, whether a risk is
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
foreseeable does not determine whether the actor owes such a duty of care,
but instead whether conduct is negligent. Id. § 284(a) (defining negligent
conduct as “an act . . . a reasonable man should recognize as involving an
unreasonable risk of causing an invasion of an interest of another”). Failing
to act reasonably with respect to foreseeable risks (those recognizable by a
reasonable person) is negligence under the terminology of the Second
Restatement. Id. §§ 282, 284(a). But “[c]onduct which is negligent in
character does not result in liability unless there is a duty owed by the actor
to the other not to be negligent.” Second Restatement ch. 12, topic 4, scope
note.
¶113 Various provisions of the Second Restatement define
circumstances where “liability” may be imposed for negligent conduct. See,
e.g., Second Restatement § 364 (liability of possessor of land for dangerous
artificial conditions on land). The majority mistakenly suggests that such
provisions base duty on the foreseeability of harm. Supra ¶¶ 36, 42-43. Such
provisions instead presuppose that a duty exists (that is, an actor may be
liable for acting negligently) and either specify the standard of care (e.g., a
possessor must not create artificial conditions that foreseeably involve an
unreasonable risk of harm) or identify those whose injuries will be viewed
as proximately caused by any breach. See Restatement (Third) of Torts:
Physical & Emotional Harm § 54, cmt. a (Am. Law Inst. 2010) (“Third
Restatement”) (noting that because Restatement Second §§ 364 and 366
“were not phrased in terms of duty but instead provided the conditions for
liability, they also incorporate concerns about the foreseeable risk and
burden of precaution”).
¶114 By rejecting foreseeability as a basis for duty, Gipson is
consistent with the Second Restatement in distinguishing an actor’s
negligence (acting unreasonably in the face of foreseeable risks) from
whether a defendant owes a duty of care. See Gipson, 214 Ariz. at 144 ¶ 17.
Rather than narrowing the circumstances in which duties exist, Gipson
recognized that foreseeability should be assessed by the fact finder in
evaluating if conduct was negligent and not by the court in determining
whether a defendant owed any duty of care. Id. The majority’s analysis,
unfortunately, obscures the distinctions between duty, the standard of care,
and negligence, and it unnecessarily questions whether liability may exist
under various provisions of the Second Restatement. See supra ¶¶ 36, 38,
41. Cases like Carver and its adoption of Second Restatement § 364 would
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
more appropriately be recharacterized, in light of Gipson, as reflecting that
foreseeability, while not determinative of duty, may support a finding of
negligence and thus liability.
¶115 Recognizing a duty owed by a landowner engaging in risk-
creating, on-site activity to those harmed by that activity does not lead to
limitless liability for the landowner. As this Court recently noted in Sanders
v. Algers, “Recognizing a duty . . . is not, of course, the same as saying that
[a defendant] will be liable for injuries incurred . . . .” 242 Ariz. 246, 249
¶ 13 (2017). “That a duty exists does not mean that it has been breached in
any particular case or that a negligent act has proximately caused an
injury.” Id. Here, Quiroz must still demonstrate that Reynolds breached its
duty and that Reynolds realized or should have realized that second-hand
exposure to asbestos via an employee’s clothing involved an unreasonable
risk of harm.
¶116 In sum, because our caselaw and § 371 suggest that Reynolds
could be liable for the injury caused by its release of toxic asbestos beyond
its property, I would reverse the trial court’s entry of summary judgment.
III.
¶117 I also disagree with the majority’s rejection of § 7 of the Third
Restatement. The majority depicts this provision as radically departing
from our tort law by presuming that all persons owe a duty of care to all
others at all times. See supra ¶ 75. But § 7 does no such thing.
¶118 Section 7 provides that “[a]n actor ordinarily has a duty to
exercise reasonable care when the actor’s conduct creates a risk of physical
harm” unless reasons of principle or policy dictate otherwise. Third
Restatement § 7. Thus, § 7 does not state or imply that there is always a
duty owed to everyone. Rather, it creates the presumption of a duty. See
W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal. L. Rev. 671,
681 (2008) (remarking that the Third Restatement “adopts a default duty of
reasonable care to avoid [unreasonably causing bodily injury or property
damage]”).
¶119 The presumed duty under § 7 is limited to conduct creating a
risk of physical harm and is expressly subject to exceptions. As § 7(b) notes,
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to Parts I and II, dissenting
“In exceptional cases, when . . . policy warrants denying or limiting liability
in a particular class of cases, a court may decide that the defendant has no
duty or that the ordinary duty of reasonable care requires modification.”
See also Gipson, 214 Ariz. at 147 ¶ 35 (Hurwitz, J., concurring) (“It thus
would seem to make sense for courts to view the duty of reasonable care as
the norm, and depart from that norm only in those cases where public
policy justifies an exception to the general rule.”). This Court has
recognized such exceptions when presented with sufficiently weighty
policy concerns. See, e.g., Guerra v. State, 237 Ariz. 183, 187 ¶¶ 19, 22 (2015)
(ruling that “officers do not owe a duty to a victim's family or friends by
undertaking to investigate a crime or accident and identify victims”
because imposing a duty “at a minimum, would cause officers to delay in
making [next of kin] notifications”); Gipson, 214 Ariz. at 148 ¶ 37 (Hurwitz,
J., concurring) (“Courts have imposed only limited duties of care upon
social hosts serving alcohol because of ‘staggering’ economic and social
consequences from adhering to the general rule of reasonable care.”).
¶120 As a counterpoint to § 7, § 37 clarifies that “[a]n actor whose
conduct has not created a risk of physical or emotional harm to another has
no duty of care to the other unless a court determines that one of the
affirmative duties provided in §§ 38-44 is applicable.” Third Restatement
§ 37. Sections 38-44 include traditional affirmative duties based on special
relationships (e.g., parent and child) and the rescue doctrine. In other
words, under the Third Restatement, a person does not owe a duty of care
unless his or her conduct creates a risk of physical harm or an affirmative
duty applies. This is a far cry from Reynolds’s contention that § 7 imposes
a “free flowing general duty of care at all times to all people.”
¶121 Moreover, § 7 does not depart from the Second Restatement’s
substantive approach. The Second Restatement states:
In general, anyone who does an affirmative act is under a duty to
others to exercise the care of a reasonable man to protect them
against an unreasonable risk of harm to them arising out of the
act. The duties of one who merely omits to act are more
restricted, and in general are confined to situations where there
is a special relation between the actor and the other which gives
rise to the duty.
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to Parts I and II, dissenting
Second Restatement § 302 cmt. a. The Second Restatement’s blackletter text
also reflects this view, as it bases liability on, among other things, an actor’s
negligent conduct without separately referring to “duty.” See Second
Restatement § 281 (listing elements of negligence cause of action).
Negligent conduct in turn is defined as a person’s either acting to create an
unreasonable risk of harm, id. § 284(a), or - when “under a duty to do” so -
failing to protect or assist another, id. § 284(b). Thus, the Second
Restatement generally presumes that people have a duty to act reasonably
with respect to their affirmative acts, but liability for failing to protect
another requires a duty arising from some special relationship. See Second
Restatement §§ 314, 315. “Normally, where there is an affirmative act which
affects the interests of another, there is a duty not to be negligent with
respect to the doing of the act.” Second Restatement ch. 12, topic 4, scope
note. In this respect, the Second Restatement anticipates the Third
Restatement’s formulation: when engaging in affirmative conduct, the actor
has a duty to exercise reasonable care so as to not harm others. Although
§ 7 of the Third Restatement refines the Second Restatement by focusing on
risk creation as opposed to act and omission, it does not deviate from the
general principles recognized in the Second Restatement.
¶122 Section 7’s focus on risk creation reflects how this Court has
long examined the existence of a legal duty. For instance, in 1925, this Court
held that “[a]s a general proposition, one who voluntarily creates and
maintains a condition for the use of others is, in the absence of some
privilege, charged with the duty to exercise care to prevent that condition
from becoming a source of danger to those who use it.” Cummings, 28 Ariz.
at 212 (emphasis added). In 1941, the Court held that an owner of property
abutting a public street “owe[s] a duty to the public to do no affirmative act
that will create a dangerous condition in the street fronting his property.”
Cobb v. Salt River Valley Water Users’ Ass’n, 57 Ariz. 451, 454 (1941)
(emphasis added). Most recently, in 2012, the Court asserted that “[i]n
general, ‘every person is under a duty to avoid creating situations which
pose an unreasonable risk of harm to others.’” Nunez, 229 Ariz. at 121 ¶ 17
(citations omitted). Thus, since 1925, this Court has consistently declared
that a person owes a duty of reasonable care if his or her actions create a
risk of physical harm. Section 7 of the Third Restatement reinforces rather
than contradicts this Court’s precedent.
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
¶123 That a person owes a duty to abstain from negligently hurting
legal strangers is not a radical or new principle. See Crouse, 77 Ariz. at 365
(noting that “[t]he whole modern law of negligence, with its many
developments, enforces the duty of fellow-citizens to observe in varying
circumstances an appropriate measure of prudence to avoid causing harm to
one another” (emphasis added) (quoting P.A. Landon, Pollock’s Law of Torts
17 (15th ed. 1951)). See also Dobbs et al., supra ¶ 109, § 251 (noting that the
approach of the cases and understanding of major commentators is that
“where the defendant by some action on his part, creates, maintains, or
continues a risk of physical harm, the general standard of duty is the duty
of reasonable care” and that “a duty of care is ordinarily owed to avoid
conduct that creates risk of harm to others”). This explains why this Court
recognizes a duty of care when operating an automobile even though the
driver has no special relationship to the victim. See, e.g., Coburn v. City of
Tucson, 143 Ariz. 50, 52 (1984) (holding that “motorists have a duty to drive
with reasonable care”).
¶124 In rejecting § 7, the majority erroneously contends that it
improperly relieves the plaintiff of the burden of “proving” the existence of
duty; that it incorrectly bases duty on the fact of injury to a plaintiff, and
that it “conflates duty with the standard of care.” Supra ¶¶ 52, 78. Whether
a duty exists is a question of law rather than fact, and the Third Restatement
does not shift any burden of proof to the defendant, but instead states that
“[a] defendant has the procedural obligation to raise the issue of whether a
no-duty rule or some other modification of the ordinary duty of reasonable
care applies in a particular case.” Third Restatement § 7, cmt. b. If the
existence or scope of a duty turns on disputed adjudicative facts, “the
plaintiff bears the burden of proof on facts necessary to establish a duty.”
Id.
¶125 Under § 7, the existence of a duty clearly does not turn on the
fact that a plaintiff has suffered an injury. Instead, conduct creating the risk
of physical harm – antecedent to any injury – ordinarily gives rise to a duty
of reasonable care. What a defendant must do to meet that duty is the
standard of care, “an issue of fact that turns on the specifics of the
individual case.” Gipson, 214 Ariz. at 143 ¶ 10. Liability – as distinct from
duty - under § 7 requires the plaintiff to prove that the defendant breached
the duty of care, which requires “the factfinder [to] assess the foreseeable
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
risk at the time of the defendant’s alleged negligence.” Third Restatement
§ 7 cmt. j.
¶126 Section 7, consistent with Gipson, properly distinguishes the
categorical determination of the existence of duty from case-specific
findings of breach or proximate cause, which may depend on foreseeability.
See 214 Ariz. at 144 ¶ 17; see also A.W. v. Lancaster Cty. Sch. Dist. 0001, 784
N.W.2d 907, 915, 917-18 (Neb. 2010) (adopting § 7 as “persuasive” and
consistent with general common law rule that, “in negligence cases, the
duty is always the same - to conform to the legal standard of reasonable
conduct in light of the apparent risk,” and stating that “placing
foreseeability in the context of breach, rather than duty, properly charges
the trier of fact with determining whether a particular harm was, on the
facts of the case, reasonably foreseeable - although the court reserves the
right to determine that the defendant did not breach its duty of reasonable
care, as a matter of law, where reasonable people could not disagree about
the unforeseeability of the injury”); Behrendt v. Gulf Underwriters Ins., 768
N.W.2d 568, 575-76 (Wis. 2009) (noting a “clear distinction between the
determinations required for duty and breach” and explaining that “[a] lack
of foreseeable risk in a specific case may be a basis for a no-breach
determination, but such a ruling is not a no-duty determination” (quoting
Third Restatement § 7, cmt. j)). The majority unfortunately obscures these
distinctions.
¶127 The majority also misdescribes § 7 and its implications for this
case by asserting that “limitless duties expand tort liability beyond
manageable bounds.” Supra ¶ 80. Accepting that Reynolds had a
presumed duty of reasonable care not to expose others to asbestos released
from its factory does not in itself establish liability, which would still be
limited by the requirements that a plaintiff show a breach of that duty and
proximately caused injuries. See Sanders, 242 Ariz. at 249 ¶ 13; see also Nicole
Ward, Note, When Laundry Becomes Deadly: Why the Extension of Duty Past
Spouses in Schwartz v. Accuratus Corp. Holds the Right People Responsible for
Take-Home Toxic Torts, 62 Vill. L. Rev. 457, 480 (2017) (rejecting notion that
extending duty in take-home asbestos cases “create[s] limitless liability”).
Moreover, the scope of any presumed duty could be limited under § 7(b)
and the approach this Court has taken in cases such as Guerra. That analysis
might suggest, for example, that the duty of care in take-home asbestos
cases should extend only to members of the employees’ households. Cf.
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CHIEF JUSTICE BALES, joined by VICE CHIEF JUSTICE PELANDER, as
to Parts I and II, dissenting
Kesner v. Superior Court, 384 P.3d 283 (Cal. 2016) (reaching similar
conclusion under California law); Van Fossen v. Midamerican Energy Co., 777
N.W.2d 689 (Iowa 2009) (relying on public policy, after having adopted § 7,
in declining to recognize duty of care by power plant owner to independent
contractor’s spouse). Limiting the duty - or rejecting its existence all
together - would require the Court to expressly articulate and assess the
public policy concerns underlying its conclusion.
¶128 By recognizing a duty to others, § 7 protects individual liberty
and personal autonomy and does not impinge on those fundamental
interests as the majority argues. See supra ¶ 86. One of the primary tasks of
the law is to “prevent collision between people, and this is done
affirmatively, by recognizing the autonomy of each person over his or her
person, and negatively, by prohibiting the use of force or deception to
compromise that autonomy.” Richard A. Epstein, The Uneasy Marriage of
Utilitarian and Libertarian Thought, 19 Quinnipiac L. Rev. 783, 786 (2000).
Modern tort law provides “the legal grounds for redress of accidental harm
to person and property.” Richard A. Epstein, Torts § 3.1, at 69 (1999). Thus,
§ 7 preserves personal autonomy by allowing for plaintiffs to be made
whole when their autonomy is violated and they are physically injured by
the careless conduct of others.
¶129 Third Restatement § 7 simply reflects the common law
understanding of duty to strangers - that a person has a duty to exercise
reasonable care so as not to harm others when engaging in activity that
entails a risk of physical harm. Rather than reaffirm this principle, the
majority seeks to restrict the recognition of duty to circumstances in which
a plaintiff can demonstrate some special relationship or a statutorily based
public policy. In doing so, the majority ignores “black letter law repeated
by an overwhelming majority of courts: that a defendant owes a duty of
care not to act in a way that creates a risk of harm to others” and risks
engaging in a “pointless, confusing, and sometimes obfuscating effort[] to
find a basis for a duty when a defendant created a risk of physical harm to
[another].” Cardi & Green, supra ¶ 118, at 716, 727. Our established tort
principles, and the goals of deterring careless behavior and compensating
those injured by it, would be better served by recognizing that while we do
not owe a duty of care to all others at all times, we do generally owe a duty
to not unreasonably subject others to the risk of physical harm.
45