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| [1] | Wyoming Supreme Court |
| [2] | No. 99-24 |
| [3] | 991 P.2d 739, 1999.WY.0042142 <http://www.versuslaw.com>,
15 IER Cases 1370 |
| [4] | November 30, 1999 |
| [5] | 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). |
| [6] | Representing Appellant: Sharon M. Rose of Vehar, Beppler, Lavery & Rose,
P.C., Evanston, Wyoming. Representing Appellee: 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. |
| [7] | Before Lehman, C.J., and Thomas, Macy, Golden and Hill, JJ. |
| [8] | Appeal from the District Court of Sweetwater County Honorable Jere Ryckman,
Judge |
| [9] | NOTICE: This opinion is subject to formal revision before publication
in Pacific Reporter Second. Readers are requested to notify the Clerk of
the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any
typographical or other formal errors in order that corrections may be made
before final publication in the permanent volume. |
| [10] | Golden, Justice. |
| [11] | 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, *fn1
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. |
| [12] | 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. |
| [13] | ISSUES |
| [14] | Duncan presents the following issues for our review: |
| [15] | A. Did the district court err in dismissing the complaint and failing
to recognize that plaintiff had also pled a cause of action for negligent
misrepresentation. |
| [16] | B. Did the district court err in failing to recognize a duty of care from
a collection company, who at the request of an employer, collects urine
specimens of employees for the purpose of performing drug and alcohol testing,
to the donor/employee. |
| [17] | Afton rephrases the issues as: |
| [18] | A. Did the District Court properly dismiss Plaintiff=s complaint finding
that no legal duty exists between Plaintiff and Defendants? |
| [19] | B. Did the District Court err in not separately addressing Plaintiff=s
alleged claim of negligent misrepresentation? |
| [20] | The Amicus Curiae brief of Wyoming Trial Lawyers Association accepted
the issues presented by Duncan and did not present others. |
| [21] | FACTS |
| [22] | 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. |
| [23] | 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. |
| [24] | 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. *fn2 |
| [25] | 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. |
| [26] | 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. |
| [27] | 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. |
| [28] | DISCUSSION |
| [29] | Standard of Review |
| [30] | 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 Ais 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. |
| [31] | 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). |
| [32] | 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). |
| [33] | 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. |
| [34] | Parties== Arguments |
| [35] | 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. |
| [36] | 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 have
a contract. Because Afton had no contract with Duncan, it reasons it owed
him no duty. |
| [37] | Privity |
| [38] | The privity requirement has long been imposed to eliminate the threat
of indeterminate, unchecked liability for economic damages. Century Ready-Mix
Co. v. Campbell County School Dist., 816 P.2d 795, 804-05 (Wyo. 1991). Without
a contractual relationship between Afton and Duncan, the privity requirement
would prohibit imposing liability. We have previously ruled, however, that
the privity requirement should be discarded when the legal theory is negligence
or negligent misrepresentation: |
| [39] | Traditionally, attempts by injured third parties to recover for damages
arising out of the negligent performance of a contractual duty fail because
of lack of privity. See Ultramares Corporation v. Touche, 255 N.Y. 170,
174 N.E. 441 (1931) and see generally 57A Am.Jur.2d Negligence, ' 123 (1989).
Courts first discarded the requirement of privity in product liability cases
based on negligence. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111
N.E. 1050 (1916). The basis of liability may be negligent misrepresentation.
Martin v. Bengue, Inc., 25 N.J. 359, 136 A.2d 626 (1957). Damages in product
liability suits have not been limited to physical injury; recovery has also
been permitted for economic loss. See Santor v. A & M Karagheusian, Inc.,
44 N.J. 52, 207 A.2d 305 (1965). An exhaustive review of economic loss damages
is provided in Continental Ins. v. Page Engineering Co., 783 P.2d 641, 666-82
(Wyo. 1989), Urbigkit, J., Dissenting. |
| [40] | Courts, upon abandonment of the privity requirement, expanded tort liability
by holding that a third party, not in privity of contract with a professional
person or entity, may recover for negligence which proximately causes a
foreseeable economic injury to him. The general principle is delineated
in Restatement (Second) Torts, supra, ' 552 (Topic 3. Negligent Misrepresentation). |
| [41] | Century Ready-Mix Co., 816 P.2d at 804-05 (footnote omitted). |
| [42] | Duncan has advanced both negligence and negligent misrepresentation theories;
therefore, privity concerns are not presented in this case. Under ordinary
negligence principles, we must explore whether a third party stands in such
a relationship with collection agencies that policy considerations require
that tort liability should be imposed. |
| [43] | Duty |
| [44] | On the several occasions that courts have addressed the liability of parties
performing drug and alcohol testing, variations in the particular facts,
the legal theories advanced, and the rationale employed resulted in few
decisions containing a comprehensive duty of care analysis. Courts have
divided in deciding whether a party involved in performing drug and alcohol
testing of employees and potential employees owes a duty of care to those
persons. *fn3 |
| [45] | As support for the proposition that it owes no duty of reasonable care
to the employee, Afton relies on the reasoning of Smithkline Beecham Corp.
v. Doe, 903 S.W.2d 347 (Tex. 1995). Smithkline ruled that a drug tester
retained by an employer to screen a potential employee owes no duty to that
potential employee to warn her about the possible effects of consuming poppy
seeds prior to the test. Id. at 351-54. Rationalizing that it was impossible
either to inform a test subject of all possible causes of positive results
other than using drugs or to warn that test results might be misinterpreted,
the Texas Supreme Court determined that any duty of care was a burden more
properly placed with employers, the clients of Smithkline. Smithkline, 903
S.W.2d at 354; see also Smithkline, 903 S.W.2d at 358-59 (Gammage, J., Dissenting).
The Fifth Circuit interpreted Smithkline as authority that no duty is owed
and withdrew an earlier decision that generally held a drug tester owes
a duty of reasonable care to the employee. Willis v. Roche Biomedical Labs.,
Inc., 61 F.3d 313, 316 (5 th Cir. 1995); Willis v. Roche Biomedical Labs,
Inc., 21 F.3d 1368 (5 th Cir. 1994). |
| [46] | The court in Smithkline thought it significant that the New York Court
of Appeals had held that no tort duty to use reasonable care should be imposed
on polygraph test operators when polygraph results would be a factor in
hiring and firing decisions. Smithkline, 903 S.W.2d at 352 (citing Hall
v. United Parcel Serv. Of America, 76 N.Y.2d 27, 556 N.Y.S.2d 21, 555 N.E.2d
273, 276-78 (N.Y. 1990)). Concerning this point, a federal court sitting
in New York has recently found that Athe Hall case, while persuasive and
helpful, is not controlling. Polygraphs and urinalyses are distinct enough
that this court believes the New York Court of Appeals would engage in fresh
analysis to decide whether or not the common law of this state recognizes
the action Santiago is attempting to pursue.@ Santiago v. Greyhound, 956
F. Supp. 144, 149 (N.D.N.Y. 1997). The court in Santiago conducted a comprehensive
duty analysis and found a duty to exist. |
| [47] | Afton directs our attention to two other cases specifically holding that
a testing laboratory owes no duty of care to an employee, Caputo v. Compuchem
Laboratories, Civ. A. No. 92-6123, 1994 WL 100084 (E.D. Pa., Feb. 23, 1994),
and Herbert v. Placid Refining Co., 564 So.2d 371, 374 (La. App.), writ
denied, 569 So.2d 981 (La. 1990). Both of these cases reached their holdings
with little or no duty of care analysis. Caputo refused to find that a drug
tester owed any duty beyond providing an accurate report. Caputo, at *3.
The laboratory reported a urinalysis as positive for morphine and the employer
terminated plaintiff=s employment based upon this result. Claiming that
the result was due to poppy seed consumption, the employee had an independent
laboratory test the same specimen and confirmed the accuracy of the result.
However, the positive result was at such a low level that, among other claims,
plaintiff contended the laboratory had a duty either to corroborate the
result by an additional test identified in federal regulations before reporting
the positive result to the employer, or to ensure the employer properly
interpreted the result. Caputo, at *2. The federal district court disagreed,
finding it inappropriate to impose a duty on the laboratory to verify positive
results or to notify the employer, and finding that neither the facts nor
the law supported holding a laboratory negligent for accurately reporting
a positive result without verifying the result. Caputo, at *3. |
| [48] | In Herbert, a Louisiana intermediate appellate court held that a testing
laboratory had no duty to competently analyze the urine of a plaintiff.
Analogizing the action to one of negligent interference with a contract,
a tort not recognized in Louisiana, the court limited its analysis to a
determination that no relationship existed between the plaintiff-employee
and the testing laboratory that would justify imposing a duty. Herbert,
564 So.2d at 373-74. Other Louisiana intermediate appellate courts have
specifically rejected the holding in Herbert, holding that a claim in general
negligence exists based on a breach of a duty to perform drug tests in a
competent and non-negligent manner. Nehrenz v. Dunn, 593 So.2d 915, 917
(La. App. 1992); Elliott v. Laboratory Specialists, Inc., 588 So.2d 175,
176 (La. App. 1991), writ denied, 592 So.2d 415 (La. 1992); Lewis v. Aluminum
Co. of America, 588 So.2d 167, 170 n.3 (La. App. 1991), writ denied, 592
So.2d 411 (La. 1992). |
| [49] | When this Court has considered whether a duty should be imposed based
on a particular relationship, we have balanced numerous factors to aid in
that determination: *fn4
(1) the foreseeability of harm to the plaintiff, (2) the closeness of the
connection between the defendant's conduct and the injury suffered, (3)
the degree of certainty that the plaintiff suffered injury, (4) the moral
blame attached to the defendant's conduct, (5) the policy of preventing
future harm, (6) the extent of the burden upon the defendant, (7) the consequences
to the community and the court system, and (8) the availability, cost and
prevalence of insurance for the risk involved. |
| [50] | Ortega v. Flaim, 902 P.2d 199, 203, 206 (Wyo. 1995) (quoting Mostert,
741 P.2d 1090, 1094 (Wyo. 1987), citing to Gates v. Richardson, 719 P.2d
193, 196 (Wyo. 1986), quoting Tarasoff v. Regents of University of California,
551 P.2d 334, 342 (Cal. 1976)). |
| [51] | Afton contends that harm to Duncan is not foreseeable merely by its selection
of urine as the subject of collection and analysis. Duncan disagrees, indicating
evidence exists that urinalysis for alcohol content is unreliable and Afton
negligently recommended it to Solvay. Duncan further contends that Afton
negligently collected and handled his urine specimen. We find that Afton
could foresee that improper collecting and handling of the specimen could
contribute to a false positive result and could injure an employee. Santiago,
956 F. Supp. at 152-53; accord Stinson v. Physicians Immediate Care, Ltd.,
646 N.E.2d 930, 933-34 (Ill. App. 1995); Lewis, 588 So.2d at 170.; Elliott,
588 So.2d at 176. It is foreseeable that in recommending testing to an employer,
Afton=s failing to inform the employer about the proper interpretation and
procedures when positive results occur could injure an employee. |
| [52] | Assisted by Santiago=s Discussion of the social considerations supporting
the imposition of a duty, we see the emergence of a connection between Afton=s
conduct and Duncan=s injury. Companies performing drug and alcohol testing
benefit financially from a market increasing for two reasons: research showed
that testing is now commonplace by employers because employee substance
abuse is perceived as causing lost productivity, and because employers generally
believe in the accuracy of drug tests, it Amay lead employers to repose
undue confidence in their results.@ Santiago, 956 F. Supp. at 151. |
| [53] | One statistical study found that Atwo out of every five workers testing
positive truly are drug free.@ Drug screens are plagued by the problems
of Across-reactivity@B-namely, the familiar concern that metabolites of
benign consumables, like poppy seed muffins, will be confused with metabolites
of illicit substances; Aimpairment detectability@ . . . ; Apassive inhalation@
. . . ; specimen dilution, substitution or adulteration; improper calibration
or cleaning of testing equipment; and simple technician error. |
| [54] | Id. (citations omitted). As a company contracting with an employer to
collect and handle specimens for employee alcohol testing, Afton is aware
that the likely effect of a false positive result is significant and devastating;
employment will likely be terminated and future prospects of employment
adversely impacted. Duncan presents a claim that, as a direct result of
Afton=s negligent conduct, his employer terminated his employment because
of erroneous alcohol testing results, and Afton=s conduct ascertainably
injured Duncan, satisfying the second and third factors in our duty analysis.
See Santiago, 956 F. Supp. at 151. |
| [55] | In assessing the moral blame factor, several considerations make it appropriate
to impose a duty of reasonable care upon a collection company: its direct
financial benefit in providing alcohol testing services to Duncan=s employer;
its direct control over establishing and ensuring proper collection and
handling procedures; its ability to hire and train competent personnel to
perform services; and its ability to contract with the employer to ensure
test results are properly interpreted and utilized. |
| [56] | Perhaps the most important factor in this analysis is whether the policy
of preventing future harm is at issue. Afton does not present an argument
on this particular factor. Companies like Afton provide services that present
a risk of harm great enough to hold them accountable. The particular services
provided demand adequate protection of employees= interests to prevent future
harm, and the imposition of a duty to act reasonably will reduce the likelihood
of injury. There is little question that our ruling that Afton owes a duty
places a burden upon Afton to act in a Ascientifically reasonable manner@
and guard against human error; however, Afton is in the best position to
guard against employee injury arising from its collection and handling procedures.
Elliot, 588 So.2d at 176. Because Afton is paid for its services, it is
better able to bear the burden financially than the individual wrongly maligned
by a false positive report. Stinson, 646 N.E.2d at 934. |
| [57] | Afton argues that it is the employer and the laboratory performing the
test which are in the best position to bear the burden of liability. In
this case, Solvay contracted with another laboratory to perform the test
and did not involve Afton in its decision to use Duncan=s test result to
terminate his employment. Duncan responds that it was Afton that represented
to Solvay that urinalysis was a reliable method of testing for alcohol,
and Solvay relied upon those representations. Duncan concedes that his discovery,
limited by protective order, followed by the dismissal of this action, leaves
him uncertain whether other actors will be joined in the complaint if this
case is remanded. That others may have acted wrongfully in terminating Duncan=s
employment is not proper grounds for refusing to impose a duty of care on
Afton to collect and handle urine specimens and, when it makes representations,
to properly educate employers with reasonable care because there is no question
that it is in a better position to do so. |
| [58] | The factor of Athe consequences to the community and the court system@
scrutinizes the negative aspects inflicted upon society by creating a new
cause of action. The positive consequences to the community in protecting
employees= interests are not outweighed by society=s interest in detecting
substance abuse. In considering whether the court system is adversely affected
by recognizing this new cause of action, our general concern is the burdensome
increase of litigation. Afton has argued that its role in the process is
too remote to find that it is a proper defendant. It claims that the employer
and the testing laboratory are the proper parties to this suit because any
harm to Duncan was the result of their actions in reporting an erroneous
test result, and in acting upon the erroneous information. Afton contends
that if it is found to owe a duty of care then any actor involved in this
process, such as the company that ships the specimen to the laboratory,
will be joined in the action as defendant. Our analysis has already determined
that Afton was not remote to this process of substance abuse testing. It
exists to perform these services and is in a position to control the accuracy
and the reliability of the testing method and collection process. We do
not believe it can be said that shipping specimens as part of a general
shipping business places the shipping company in a position to control similar
aspects of the testing process. The imposition of a duty of care on the
part of Afton will not unduly burden the court system. |
| [59] | Finally, Afton presents no argument on the final factor=s concern with
availability and prevalence of insurance, and we do not find it necessary
to our consideration. |
| [60] | Duty is an expression of the sum total of those considerations of policy
which lead the law to say that the plaintiff is entitled to protection.
Gates, 719 P.2d at 196. The sum total of our considerations supports imposing
a duty upon Afton. We reverse the district court=s order dismissing the
action and remand for further proceedings. |
| [61] | Negligent Misrepresentation |
| [62] | Duncan contends that the district court, in dismissing this suit, failed
to recognize that he had presented a claim of negligent misrepresentation.
The dispositive issue before the district court was the existence of a duty;
having found no duty, the district court dismissed the entire suit. Because
we hold Afton owes such a duty, Duncan is free to amend his complaint under
W.R.C.P. 15 to separately plead this cause of action. |
| [63] | CONCLUSION |
| [64] | A company collecting urine specimens as part of an employer=s substance
abuse testing program owes a duty of care to the employee who submits a
specimen. We reverse the district court=s order dismissing Duncan=s suit
and remand for further proceedings. |
|
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| Opinion Footnotes | |
|
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|
| [65] | *fn1 Duncan filed
suit against AAfton, 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.@ The specimen was collected by Ameritest. For
purposes of this appeal, we shall refer to these appellees as Afton. Our
decision applies to all appellees. |
| [66] | *fn2 At oral argument,
Duncan explained that his copy of the paperwork showed no temperature was
taken, other copies retained by Afton indicated a temperature. |
| [67] | *fn3 A duty of care
was recognized in Santiago v. Greyhound, 956 F.Supp. 144, 147-53 (N.D.N.Y.
1997); Nehrenz v. Dunn, 593 So.2d 915, 917-18 (La. App. 1992); Elliott v.
Laboratory Specialists, Inc., 588 So.2d. 175, 176 (La. App. 1991); Lewis
v. Aluminum Co. of America, 588 So.2d 167 (La. App. 1991); Stinson v. Physicians
Immediate Care, Ltd., 646 N.E.2d 930, 934 (Ill. App. 1995). Those cases
refusing to find a duty are Smithkline Beecham Corp. v. Doe, 903 S.W.2d
347 (Tex. 1995), and Caputo v. Compuchem Labs., Inc., Civ. A. No. 92-6123,
1994 WL 100084 (E.D.Pa. Feb. 23, 1994). Decisions made upon legal theories
other than negligence include Herbert v. Placid Refining Co., 564 So.2d
371, 374 (La. App. 1990) (dismissed on grounds that Louisiana does not recognize
the tort of negligent interference with contract); Devine v. Roche Biomedical
Labs.,Inc., 637 A.2d 441, 447-48 (Me. 1994) (tort claims denied without
conducting a duty of care analysis). |
| [68] | *fn4 Besides Wyoming=s
balance of factors test, we note that two other common methods for determining
the existence of a duty, the foreseeability test and the risk-duty analysis,
are used in those decisions analyzing an employee=s drug testing claim.
Amy Newnam, Jay M. Feinman, Liability of a Laboratory for Negligent Employment
or Pre-Employment Drug Testing, 30 Rutgers L.J. 473, 478-83 (1999). |
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