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Duncan v. Afton11/30/1999
n 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.
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.
DISCUSSION
Standard of Review
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.@ I
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