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Perez v. Southern Pacific Transportation Co.12/21/1993
FERNANDEZ, Judge.
This appeal and cross-appeal arise from a judgment entered, following a trial to the court, in favor of appellee/cross-appellant Robert M. Perez, as personal representative of Anne M. Perez, on his claim for strict liability for an abnormally dangerous activity against appellant/cross-appellee Southern Pacific Transportation Company and denying his claims for negligence and products liability.
Southern Pacific filed a third-party complaint to allocate the liability among various suppliers and manufacturers of asbestos and asbestos-containing products. The complaint was served on the third-party defendants, but dismissed prior to trial and is not part of this appeal.
Southern Pacific argues that the court's finding of strict liability for abnormally dangerous activity was error as a matter of law. On cross-appeal, Perez argues the court erred in finding that the claim for products liability was barred by the statute of repose, A.R.S. § 12-551. We reverse and remand.
FACTS
The undisputed facts are that Anne Perez's death at age 59 in 1991 resulted from mesothelioma, a form of cancer caused by exposure to asbestos. Mesothelioma has a latency period prior to clinically manifested symptoms of 25 to 40 years. Perez resided in the family home until her marriage in 1951; the disease was diagnosed in May 1989. Perez's father, Rafael Montenegro, worked for Southern Pacific Railroad in Tucson from 1923 to 1954. From 1931 to 1951, while working as a boilermaker, Montenegro was exposed to asbestos-containing insulation materials used in the repair and maintenance of steam locomotives.
During repair and maintenance, asbestos-containing insulation was removed and reinstalled in the back shop of Southern Pacific's Tucson rail yard. That process created a substantial amount of visible dust in the shop. Montenegro wore his work clothes home and hung them in the family's only bathroom prior to laundering. On occasion, Perez entered Southern Pacific's yard to deliver her father's lunch.
APPEAL
Strict Liability: Abnormally Dangerous Activity
Southern Pacific argues that, as a matter of law, the trial court erred in eliminating a foreseeability requirement before imposing strict liability for abnormally dangerous activity.
We look to the Restatement (Second) of Torts §§ 519 and 520 (1965), as authority in imposing strict liability for abnormally dangerous activity. Correa v. Curbey, 124 Ariz. 480, 605 P.2d 458 (App. 1979). Whether an activity is abnormally dangerous is not a fact question; such determinations are for the court. Cordova v. Parrett, 146 Ariz. 79, 82, 703 P.2d 1228, 1231 (App. 1985); Restatement (Second) of Torts § 520 cmt. 1.
The predicate finding appellant urges on this court is not articulated directly in the Restatement. Nor do we agree that such a finding is necessary. At issue is whether the activity of asbestos-containing insulation removal and reinstallation is abnormally dangerous as a matter of law. Questions of law are reviewed de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966).
Strict liability for abnormally dangerous activities is a distinct legal theory. It is not a claim for strict products liability alleging that a product was in a defective condition and unreasonably dangerous. It is not a claim alleging that the defendant was engaged in inherently dangerous activities; such activities are not within a strict liability concept. Rather, they i
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