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Duncan v. Afton11/30/1999
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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.
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.
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.
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.
Negligent Misrepresentation
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.
CONCLUSION
A company collecting urine specimens as part of an employer=s substance abuse testing program owes a duty of care to the employee
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