Are Ariz. Plant Operators Liable for Off-Site Exposures?

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By Peter Hayes

June 20 — The idea of opening up premises liability in Arizona to companies like Alcoa for secondary, off-site toxic exposures was met with skepticism by a state appeals court ( Quiroz v. Alcoa, Ariz. Ct. App., No. 15-0083, oral argument 6/15/16 ).

The possibility of expanding a property owners' general duty of care to more toxic exposures came up in a “take home” asbestos case.

The appeals court is being asked whether an employer should be liable for the death of a child allegedly exposed to asbestos brought home on his father's work clothes.

“It sounds like you're arguing for a secondary exposure duty regardless of the hazardous substance, and that's pretty broad,” Judge Peter B. Swann of the Arizona Court of Appeals told an attorney for the estate of Ernest Quiroz.

“There are a number of substances that could cause great harm to people through secondary exposure and yet the duty of a landowner seems perhaps ill-fitted to those potential victims,” Swann said during oral arguments June 15.

Peanut Allergies Too

Swann proposed the hypothetical of take-home liability for a peanut factory.

“If for example, we have a peanut factory here in Phoenix and you have an employee who works at the factory, has peanut dust all over his clothes and then goes to dinner with a friend who has a peanut allergy: Would the landowner's duty extend to that friend with the peanut allergy?”

Michael B. Gurien, the family's attorney, responded that it could extend to such an example, “if the landowner's conduct on its premises creates a risk of harm or injury to that person off the premises.”

“I wouldn't phrase it in terms of a secondary duty, but with regard the possession of land, you have a duty not to create an unreasonable risk,” said Gurien with Waters Kraus & Paul in Los Angeles.

Edward Slaughter, an attorney for the defendants, Reynolds Metals Co. and Alcoa Inc., said the plaintiffs are attempting to overturn state supreme court precedent.

The plaintiff's father was employed at Reynolds Metals and Reynolds merged with Alcoa in May 2000.

The court found in Gipson v. Kasey, 150 P.3d 228 (Az. 2007 ) that persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others.

But, in Gipson, Slaughter argued, the Arizona top court held that foreseeability is not an issue to be considered in deciding whether to extend a duty. Slaughter is with Hawkins Parnell Thackston & Young LLP in Dallas.

Judge Swann, however, countered that the Gipson court “also left the door open for courts to discover duties as a matter of social policy.”

“When we have parties using known toxins in mass quantities, might that not be a place where we could anchor a social duty?” Swann asked.

Message of Manufacturers

Slaughter concluded his arguments saying it would be unfair to look back 50 years to impose liability for exposure to such substances as polychlorinated biphenyls, when PCBs were not regulated as hazardous at the time.

“From the 1950s until the 1970s, the plaintiffs point to no regulation that existed (regarding PCBs),” Slaughter said.

“We don't want to send a message to the business community in Arizona that you can be operating your business in a 100 percent lawful way only to find 50-some odd years later you may be hauled into court and have a new duty recognized or created where no regulation existed,” he said.

“This would not be a new asbestos rule—this would be a new duty generally,” Slaughter argued.

“Whether it be peanuts, or any other substance that could cause someone an illness, you would be extending a duty to everyone in Arizona who potentially could have a claim for some sort of secondary or tertiary exposure.”

The appeal is one of several asbestos take home cases now before state appeals courts.

The New Jersey Supreme Court recently heard oral argument in Schwartz v. Accuratus Corp., N.J., No. 076195, argued 4/25/16 (31 TXLR 393, 4/28/16)(31 TXLR 393, 4/28/16) (46 OSHR 421, 4/28/16).

The California Supreme Court is set to consider premises owner duty in Haver v. BNSF Ry. Co., Cal., No. S219919, as well as product manufacturer duty in Kesner v. S.C. (Pneumo Abex), Cal., No. S219534 (30 TXLR 460, 5/7/15).

The California cases have been consolidated for oral argument and placed on the September 2016 calendar.

Judges Patricia A. Orozco and Jon W. Thompson were also present.

To contact the reporter on this story: Peter Hayes at phayes@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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