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Duncan v. Afton11/30/1999
d. 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.
Parties== Arguments
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 have a contract. Because Afton had no contract with Duncan, it reasons it owed him no duty.
Privity
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:
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 per
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