Duncan v. Afton, Inc.
| Decision Date | 30 November 1999 |
| Docket Number | No. 99-24.,99-24. |
| Citation | 991 P.2d 739 |
| Parties | Harvey J. DUNCAN, a/k/a Jim Duncan, Appellant (Plaintiff), v. AFTON, INC., a Tennessee corporation, d/b/a Healthcomp Evaluation Services Corporation, d/b/a National Ameritest, a/k/a Ameritest; and Leigh Ann Shears, an individual, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Representing Appellant: Sharon M. Rose of Vehar, Beppler, Lavery & Rose, P.C., Evanston, Wyoming.
Representing Appellees: John P. LaBuda and Stephen K. Palmer of Palmer & LaBuda, P.C., Rock Springs, Wyoming. Argument by Mr. LaBuda.
Representing Wyoming Trial Lawyers Association as Amicus Curie: Thomas J. Klepperich of Lonabaugh and Riggs, Sheridan, Wyoming.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.
A company and its employee were hired to collect a urine specimen in the first phase of a substance abuse testing program implemented by Solvay Minerals (Solvay) for its employees. In this case of first impression for Wyoming, we must decide whether the collecting company and its employee owe a duty of reasonable care to Solvay's employee who is required to submit a urine specimen. The district court ruled that, until it had direction from this Court, it would not hold that Wyoming law recognized such a duty; consequently, the district court dismissed the complaint containing negligence claims against Afton, Ameritest,1 and its employee. That action was filed by Harvey J. Duncan who was terminated by his employer, Solvay, when it received a report that Mr. Duncan's urine specimen, collected by Afton and its employee and analyzed by another company, Northwest Toxicology, showed a .32 urine alcohol content.
We hold that a collection company owes a duty of care to an employee when collecting, handling, and processing urine specimens for the purpose of performing substance abuse testing. We reverse the dismissal and remand for further proceedings.
Duncan presents the following issues for our review:
Afton rephrases the issues as:
The Amicus Curiae brief of Wyoming Trial Lawyers Association accepted the issues presented by Duncan and did not present others.
Duncan was an employee of Solvay Minerals in Sweetwater County. Solvay contracted with Afton to collect urine specimens of Solvay's employees from time to time for drug and alcohol testing. Solvay separately contracted with a laboratory, Northwest Toxicology, Inc. of Salt Lake City, Utah, to analyze the specimens and report the results to Solvay.
On December 15, 1997, Solvay ordered Duncan to submit a urine specimen for drug and alcohol testing. Duncan was randomly selected for the test in accordance with Solvay's substance abuse policy. Defendant Leigh Ann Shears, an employee of Afton, supervised the collection of a urine specimen from Duncan at Solvay's place of business.
Our standard for reviewing dismissed actions requires that we accept as true all of the facts alleged in the complaint. Feltner v. Casey Family Program, 902 P.2d 206, 207 (Wyo.1995). Duncan alleges that upon providing a urine specimen to Shears in an unsealed container, Shears directed him to return to the restroom to wash his hands. While Duncan was in the restroom, the specimen remained unsealed and out of Duncan's direct sight for that period of time. He alleges that upon his return from the restroom, Shears proceeded to seal the urine specimen and to obtain Duncan's initials on the specimen label. Shears failed to note the temperature of the specimen at the time it was taken as required by standard testing protocol. Duncan further alleges that Afton and Shears subsequently altered the chain of custody documents to make it appear that the temperature had been properly tested.2
Solvay received a report that Duncan's specimen had a urine alcohol content of .32, which Duncan alleges is an amount that would have rendered him so intoxicated that he would have been unable to function and would have appeared blatantly intoxicated. The specimen was collected approximately ten hours into Duncan's twelve-hour shift. Duncan denies consuming alcohol that day. Duncan claims that grievous errors in the collection process and the inherent unreliability of the process of testing urine for alcohol content caused the test result.
Based on the .32 report, Solvay terminated Duncan's employment on December 23, 1997. He filed suit in June of 1998, naming Afton and Shears as defendants, claiming that Afton negligently instructed and trained Shears; failed to employ proper collection and handling procedures for urinalysis of alcohol content; failed to inform Solvay that urinalysis is unreliable if specific procedures are not followed; and misrepresented to Solvay the accuracy and reliability of urine alcohol testing. Appellees answered the complaint and filed a motion to dismiss, contending that they did not owe a duty of reasonable care in the collection of the urine specimen, and filed for a protective order to stay discovery, pending the ruling on dismissal, which order was granted on October 1, 1998. That order prevented investigation of all other stages of the testing process to determine if other defendants should be named. The suit was dismissed before discovery, thus precluding Duncan from amending the complaint to name the employer and the laboratory performing the test as defendants.
In its decision letter, the district court noted that a duty of care was not established by contract or statute, and, under common law Wyoming had not established such a duty of care and it would not find such a duty without direction from this Court. In further analyzing whether the duty of care owed a patient by a physician provided a common law basis for the proposed duty of care in this instance, the district court determined that the rule of law is that a physician examining an employee for an employer owes no duty of care to an employee because a physician-patient relationship does not exist. The court ruled the relationship did not extend to create a duty of care to be imposed on Afton and its employee. Holding that a duty of care was not created by contract, statute, or common law, the district court entered an order dismissing the action, and this appeal followed.
In considering a motion to dismiss pursuant to W.R.C.P. 12(b)(6), the Court must focus on the allegations contained in the complaint and liberally construe them in the light most favorable to the plaintiff. Feltner, 902 P.2d at 207. We affirm an order of dismissal only when it is certain from the face of the complaint that the plaintiff cannot assert any facts which would entitle him to relief. Dismissal is a drastic remedy which should be granted sparingly; however, it "is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief." Id. at 208.
The elements of a cause of action for negligence include: (1) a duty owed to the plaintiff; (2) a breach, or violation of that duty; (3) which is the proximate cause of (4) plaintiff's injuries. Lynch v. Norton Const., Inc., 861 P.2d 1095, 1099 (Wyo.1993).
Essential to any negligence cause of action is proof of facts which impose a duty upon defendant. See, ABC Builders, Inc. v. Phillips, 632 P.2d 925, 931 (Wyo.1981). The question of the existence of a duty is a matter of law for the court to decide. Id., at 932. A duty exists where, "upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other—or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant." Prosser and Keeton on Torts § 37 at 236 (5th ed.1984).
Goodrich v. Seamands, 870 P.2d 1061, 1064 (Wyo.1994). Whether Afton owed a duty to Duncan to use reasonable care in the collection and processing of the urine specimen is a question of law that is reviewed de novo. Id.
Preliminarily, Duncan contends that privity of contract is not necessary to give rise to a duty in the drug and alcohol testing context. No contract or statute is in effect that would impose a duty of care on a collector of urine specimens to an employee or potential employee; accordingly, any duty owed arises from common law principles. Noting that case authorities involve both testing laboratories and collectors of specimens, Duncan claims that this Court need not distinguish between a testing laboratory and a collector because the rationale imposing a duty is the same: that the party in the best position to guard against injury owes a legal duty of reasonable care when the risk of significant injury from the party's conduct is foreseeable and the likelihood of injury is great.
Afton contends that other parties are involved in drug and alcohol testing and relies upon an eight-part test articulated in Ortega v. Flaim, 902 P.2d 199 (Wyo.1995), to assert that a collector is the party least to blame for a false positive result. Afton states that other jurisdictions have divided in deciding that a specimen collector owes a duty to an employee, and contends that a duty should not be recognized unless the parties...
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