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Duncan v. Afton11/30/1999
mitted 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.
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).
Century Ready-Mix Co., 816 P.2d at 804-05 (footnote omitted).
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.
Duty
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.
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).
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.
Afton directs our attention to two other cases specificall
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