Meros v. Sunbelt Rentals, Inc.
| Docket Number | 112483,112709 |
| Decision Date | 30 November 2023 |
| Parties | JOHN MEROS, ET AL., Plaintiffs-Appellants/ Cross-Appellees, v. SUNBELT RENTALS, INC., ET AL., Defendants-Appellees/ Cross-Appellants. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-17-890793
Flowers & Grube, Paul W. Flowers, and Kendra N. Davitt The Linton Law Firm Co., L.P.A., Robert F. Linton, Jr., and April Bensimone; Zipkin Whiting Co., L.P.A., and Lewis A Zipkin; The Penn Law Firm P.C., and Eric T. Penn, pro hac vice, for appellants and cross-appellees.
Reminger Co., L.P.A., Brian D. Sullivan, Clifford C. Masch, William A. Meadows, Richard J. Rymond, and Joseph T. Palcko, for appellees and cross-appellants.
JOURNAL ENTRY AND OPINION
{¶ 1} Candice Matthews, as fiduciary of the Estate of Tanisha M Matthews,[1] and Asiah T. Matthews (collectively, for ease of reference, "appellants") appeal the trial court's decision granting summary judgment in favor of Concentra Health Services, Inc. The trial court concluded that the drug-testing company did not owe a duty to monitor and detect an employee's use of synthetic urine while performing drug-testing services as that duty relates to a third party injured by the employee, who operated a motor vehicle while under the influence of illegal narcotics causing the fatal accident. For the following reasons, we affirm.
{¶ 2} The facts are utterly tragic, and more so compounded by the sympathetic lens through which they are presented. Sunbelt Rentals, Inc., employed Clark Justen as a mobile mechanic. Justen was addicted to opioids. That addiction spiraled into a heroin addiction after Justen was unable to obtain a prescription from his physician. While driving a Sunbelt truck, Justen purchased and then ingested heroin, which unbeknownst to him was laced with fentanyl and cocaine. As he drove under the influence on I-480 at approximately 65 m.p.h., Justen swerved onto the shoulder hitting Tanisha and Asiah Matthews, then respectively aged 27 and 23 years old, who were changing a flat tire on their car with three children inside. Tanisha was killed instantly, but Asiah survived with serious, life-changing injuries.
{¶ 3} Justen's history of drug abuse was extensive. Approximately three years before the tragedy, Justen sought work with Sunbelt, which required a preemployment, non-monitored drug test as a condition of employment. Justen submitted to the testing but used synthetic urine to cover his then use of Opana, a prescription opioid he had been receiving through a physician who was later charged with trafficking. A year before the collision at issue, Justen was involved in what appears to be a minor accident in which he rear-ended an unrelated party. Sunbelt sent Justen for another non-monitored drug test, but that was again defeated through Justen's use of the undetected synthetic urine. There is no evidence that either of the tests would have disclosed Justen's use of the opioids at the time; the screening would not have detected or disclosed the use of that particular narcotic. Opana can be legally prescribed and used to treat medical conditions. It was after the last screening that Justen began using heroin, a substance that would be tested for through the general screening. Under Sunbelt's employment policy, however, the use of synthetic urine constituted grounds for immediate dismissal.
{¶ 4} The synthetic urine product Justen used was geared toward cheating the drug-testing agency. It resembled natural urine in appearance, although not in its odor or its ability to foam when shaken, according to appellants' expert Richard Rodgers, II, D.C., a certified urine drug collector. Rodgers claimed that he was able to smell the difference between synthetic and natural urine, citing a chemical odor as the baseline for detecting the synthetic variation. In practice, Rodgers detected the use of synthetic urine in five percent of the tests he monitored, but there is no discussion regarding his error rate. The synthetic urine kit Justen purchased and used also came with instructions and hand warmers to obtain the necessary temperature of the sample to fool administrators.
{¶ 5) Synthetic urine packages such as this are sold at various retail outlets and are currently legal under Ohio law. The legality of a product for which the sole purpose seems geared to defeating drug-testing requirements baffles the mind. That, however, is a policy question within the sole purview of the General Assembly.[2]
{¶ 6} According to appellants, Concentra failed to exercise reasonable care in collecting the urine specimen by failing to install measures to detect the use of synthetic urine and that constituted a breach of the duty Concentra owed appellants as members of the general public. On this point, appellants rely on their expert's opinion that Concentra failed to have its monitors smell the urine specimen to determine whether it was synthetic or natural or shake the substance to check its foaming characteristics.
{¶ 7} Sunbelt settled the claims with the appellants, but not before Concentra was dismissed through summary judgment proceedings. The issues below are the same as raised in this appeal and focus on whether Concentra, as a drug-testing agency, owes a duty to the public to detect an employee's use of synthetic urine through its contractual obligation with the tortfeasor's employer.
{¶ 8} Summary judgment rulings are reviewed de novo, and appellate courts apply the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Review of summary judgment is governed by the standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when "[1] no genuine issue of material fact remains to be litigated, [2] the moving party is entitled to judgment as a matter of law, and [3] viewing the evidence in the light most favorable to the nonmoving party, reasonable minds can reach a conclusion only in favor of the moving party." Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Appellate courts provide no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate.
{¶ 9} In order to maintain a wrongful death action and any other "'theory of negligence, a plaintiff must show (1) the existence of a duty owing to plaintiffs decedent, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death.'" Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 14, quoting Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988). "'The existence of a duty is a question of law for a court to decide, even if resolving that question requires the court to consider the facts or evidence.'" A.M. v. Miami Univ., 2017-Ohio-8586, 88 N.E.3d 1013, ¶ 33 (10th Dist), quoting Martin v. Lambert, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 17 (4th Dist.). Appellants' negligence-based tort claims all fall under the same rubric - each of the alleged tort claims require appellants to demonstrate that Concentra owed a duty to the general public to detect Justen's use of synthetic urine in defeating his drug-testing requirement.
{¶ 10} In this appeal, appellants advance several claims in support of their argument that Concentra's duty is established as a matter of law. Appellants first claim that "everyone owes a responsibility to use reasonable care to prevent foreseeable harm to others," citing Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Huston v. Konieczny, 52 Ohio St.3d 214, 217, 556 N.E.2d 505 (1990); Commerce & Indus. Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). This argument is overly broad.
{¶ 11} The term "duty" denotes the relationship between a plaintiff and a defendant, and it is from that relationship that an obligation is created for the defendant to exercise reasonable care toward the plaintiff. Crumb v. LeafGuard by Beldon, Inc., 8th Dist. Cuyahoga No. 108321, 2020-Ohio-796, ¶ 31, quoting Wallace v. Ohio DOC, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 23, and Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). The duty of reasonable care generally does not include a duty to protect third parties. Godwin v. Facebook, Inc., 2020-Ohio-4834, 160 N.E.3d 372, ¶ 41 (8th Dist), citing Hill v. Sonitrol of S.W. Ohio, 36 Ohio St.3d 36, 521 N.E.2d 780 (1988). "Foreseeability alone does not create a duty; instead, it is one of a number of factors that must be considered." Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St.3d, 293, 673 N.E.2d 1311 (1997); Santana v. Rainbow Cleaners, Inc., 969 A.2d 653, 666 (R.I.2009), citing Ferreira v. Strack, 636 A.2d 682, 688 n. 4 (R.I.1994). There is no duty to control the conduct of a third person to prevent the commission of physical harm to another person "unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relationship exists between the actor and the other which gives to the other the right to protection." Hite v. Brown, 100 Ohio App.3d 606, 613, 654 N.E.2d 452 (8th Dist.1995), citing Gelbman v. Second Natl. Bank of Warren, 9 Ohio St.3d 77, 79, 458 N.E.2d 1262, 1263 (1984), and Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989), fn. 1.
{¶ 12} Ohio law...
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