[Cite as Meros v. Sunbelt Rentals, Inc., 2023-Ohio-4313.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOHN MEROS, ET AL., :
Plaintiffs-Appellants/ : Cross-Appellees, Nos. 112483 and 112709
v. :
SUNBELT RENTALS, INC., ET AL., :
Defendants-Appellees/ Cross-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 30, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-17-890793
Appearances:
Flowers & Grube, Paul W. Flowers, and Kendra N. Davitt; The Linton Law Firm Co., L.P.A., Robert F. Linton, Jr., and April Bensimone; Zipkin Whiting Co., L.P.A., and Lewis A. Zipkin; The Penn Law Firm P.C., and Eric T. Penn, pro hac vice, for appellants and cross-appellees.
Reminger Co., L.P.A., Brian D. Sullivan, Clifford C. Masch, William A. Meadows, Richard J. Rymond, and Joseph T. Palcko, for appellees and cross-appellants. SEAN C. GALLAGHER, J.:
Candice Matthews, as fiduciary of the Estate of Tanisha M.
Matthews,1 and Asiah T. Matthews (collectively, for ease of reference, “appellants”)
appeal the trial court’s decision granting summary judgment in favor of Concentra
Health Services, Inc. The trial court concluded that the drug-testing company did
not owe a duty to monitor and detect an employee’s use of synthetic urine while
performing drug-testing services as that duty relates to a third party injured by the
employee, who operated a motor vehicle while under the influence of illegal
narcotics causing the fatal accident. For the following reasons, we affirm.
The facts are utterly tragic, and more so compounded by the
sympathetic lens through which they are presented. Sunbelt Rentals, Inc., employed
Clark Justen as a mobile mechanic. Justen was addicted to opioids. That addiction
spiraled into a heroin addiction after Justen was unable to obtain a prescription
from his physician. While driving a Sunbelt truck, Justen purchased and then
ingested heroin, which unbeknownst to him was laced with fentanyl and cocaine. As
he drove under the influence on I-480 at approximately 65 m.p.h., Justen swerved
onto the shoulder hitting Tanisha and Asiah Matthews, then respectively aged 27
and 23 years old, who were changing a flat tire on their car with three children inside.
Tanisha was killed instantly, but Asiah survived with serious, life-changing injuries.
1 During the proceedings below, appellants were granted leave to substitute Candice Matthews for John Meros as the new fiduciary for Tanisha Matthews’s estate. Justen’s history of drug abuse was extensive. Approximately three
years before the tragedy, Justen sought work with Sunbelt, which required a
preemployment, non-monitored drug test as a condition of employment. Justen
submitted to the testing but used synthetic urine to cover his then use of Opana, a
prescription opioid he had been receiving through a physician who was later charged
with trafficking. A year before the collision at issue, Justen was involved in what
appears to be a minor accident in which he rear-ended an unrelated party. Sunbelt
sent Justen for another non-monitored drug test, but that was again defeated
through Justen’s use of the undetected synthetic urine. There is no evidence that
either of the tests would have disclosed Justen’s use of the opioids at the time; the
screening would not have detected or disclosed the use of that particular narcotic.
Opana can be legally prescribed and used to treat medical conditions. It was after
the last screening that Justen began using heroin, a substance that would be tested
for through the general screening. Under Sunbelt’s employment policy, however,
the use of synthetic urine constituted grounds for immediate dismissal.
The synthetic urine product Justen used was geared toward cheating
the drug-testing agency. It resembled natural urine in appearance, although not in
its odor or its ability to foam when shaken, according to appellants’ expert Richard
Rodgers, II, D.C., a certified urine drug collector. Rodgers claimed that he was able
to smell the difference between synthetic and natural urine, citing a chemical odor
as the baseline for detecting the synthetic variation. In practice, Rodgers detected
the use of synthetic urine in five percent of the tests he monitored, but there is no discussion regarding his error rate. The synthetic urine kit Justen purchased and
used also came with instructions and hand warmers to obtain the necessary
temperature of the sample to fool administrators.
Synthetic urine packages such as this are sold at various retail outlets
and are currently legal under Ohio law. The legality of a product for which the sole
purpose seems geared to defeating drug-testing requirements baffles the mind.
That, however, is a policy question within the sole purview of the General Assembly.2
According to appellants, Concentra failed to exercise reasonable care
in collecting the urine specimen by failing to install measures to detect the use of
synthetic urine and that constituted a breach of the duty Concentra owed appellants
as members of the general public. On this point, appellants rely on their expert’s
opinion that Concentra failed to have its monitors smell the urine specimen to
determine whether it was synthetic or natural or shake the substance to check its
foaming characteristics.
Sunbelt settled the claims with the appellants, but not before
Concentra was dismissed through summary judgment proceedings. The issues
below are the same as raised in this appeal and focus on whether Concentra, as a
2 The Ohio legislature first attempted to pass 2019-2020 Am.Sub.S.B. No. 156,
133d General Assembly, to criminalize the sale or possession of synthetic urine. If codified, R.C. 2925.15 would criminalize the manufacture, marketing, sale, distribution, or possession of synthetic urine under certain conditions. That bill stalled. The 134th General Assembly picked up the mantle with the same draft language in S.B. No. 25, but that provision was removed from the final version of the bill. drug-testing agency, owes a duty to the public to detect an employee’s use of
synthetic urine through its contractual obligation with the tortfeasor’s employer.
Summary judgment rulings are reviewed de novo, and appellate
courts apply the same standard as the trial court. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Review of summary judgment is
governed by the standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d
349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only
when “[1] no genuine issue of material fact remains to be litigated, [2] the moving
party is entitled to judgment as a matter of law, and [3] viewing the evidence in the
light most favorable to the nonmoving party, reasonable minds can reach a
conclusion only in favor of the moving party.” Id., citing M.H. v. Cuyahoga Falls,
134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Appellate courts provide
no deference to the trial court’s decision and independently review the record to
determine whether summary judgment is appropriate.
In order to maintain a wrongful death action and any other “‘theory
of negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff’s
decedent, (2) a breach of that duty, and (3) proximate causation between the breach
of duty and the death.’” Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation
& Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 14,
quoting Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529
N.E.2d 449 (1988). “‘The existence of a duty is a question of law for a court to decide,
even if resolving that question requires the court to consider the facts or evidence.’” A.M. v. Miami Univ., 2017-Ohio-8586, 88 N.E.3d 1013, ¶ 33 (10th Dist.), quoting
Martin v. Lambert, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 17 (4th Dist.). Appellants’
negligence-based tort claims all fall under the same rubric — each of the alleged tort
claims require appellants to demonstrate that Concentra owed a duty to the general
public to detect Justen’s use of synthetic urine in defeating his drug-testing
requirement.
In this appeal, appellants advance several claims in support of their
argument that Concentra’s duty is established as a matter of law. Appellants first
claim that “everyone owes a responsibility to use reasonable care to prevent
foreseeable harm to others,” citing Texler v. D.O. Summers Cleaners & Shirt
Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Huston v. Konieczny,
52 Ohio St.3d 214, 217, 556 N.E.2d 505 (1990); Commerce & Indus. Ins. Co. v.
Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). This argument is overly
broad.
The term “duty” denotes the relationship between a plaintiff and a
defendant, and it is from that relationship that an obligation is created for the
defendant to exercise reasonable care toward the plaintiff. Crumb v. LeafGuard by
Beldon, Inc., 8th Dist. Cuyahoga No. 108321, 2020-Ohio-796, ¶ 31, quoting Wallace
v. Ohio DOC, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 23, and
Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188
(1989). The duty of reasonable care generally does not include a duty to protect third
parties. Godwin v. Facebook, Inc., 2020-Ohio-4834, 160 N.E.3d 372, ¶ 41 (8th Dist.), citing Hill v. Sonitrol of S.W. Ohio, 36 Ohio St.3d 36, 521 N.E.2d 780 (1988).
“Foreseeability alone does not create a duty; instead, it is one of a number of factors
that must be considered.” Estates of Morgan v. Fairfield Family Counseling Ctr.,
77 Ohio St.3d, 293, 673 N.E.2d 1311 (1997); Santana v. Rainbow Cleaners, Inc., 969
A.2d 653, 666 (R.I.2009), citing Ferreira v. Strack, 636 A.2d 682, 688 n. 4
(R.I.1994). There is no duty to control the conduct of a third person to prevent the
commission of physical harm to another person “unless (a) a special relation exists
between the actor and the third person which imposes a duty upon the actor to
control the third person’s conduct, or (b) a special relationship exists between the
actor and the other which gives to the other the right to protection.” Hite v. Brown,
100 Ohio App.3d 606, 613, 654 N.E.2d 452 (8th Dist.1995), citing Gelbman v.
Second Natl. Bank of Warren, 9 Ohio St.3d 77, 79, 458 N.E.2d 1262, 1263 (1984),
and Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 173, 543 N.E.2d
769 (1989), fn. 1.
Ohio law generally recognizes a special relationship giving rise to a
duty to protect another as between a business owner and invitee, a common carrier
and its passengers, an innkeeper and its guests, a possessor of land and an invitee, a
custodian and individual taken into her custody, and an employer and her employee.
Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 135, 652 N.E.2d 702 (1995);
Jackson v. Forest City Ents., Inc., 111 Ohio App.3d 283, 285, 675 N.E.2d 1356 (8th
Dist.1996), citing Restatement of the Law 2d (“Second Restatement”), Torts 122,
Section 314A. Appellants do not claim any of those special relations are implicated as between an employer-hired drug-testing agency and the general public but solely
rely on an argument that Concentra controlled Justen during the specimen-
collection process, giving rise to a duty to control Justen’s conduct after he departed
its facility.
Under the traditional Restatement analysis, there are five recognized
“special relations” that justify imposition of liability for nonfeasance — the duty to
protect third parties from the conduct of another. Only one of those is implicated
by appellants’ argument: that an actor in charge of a person with dangerous
propensities owes a duty to control such a person. Restatement Second, Section 319.
“In the absence of a special relationship sufficient to trigger one of these exceptions,
a private party is not liable for failing, either intentionally or inadvertently, to
exercise control over the actions of a third party so as to protect others from harm.”
McCloskey v. Mueller, 446 F.3d 262, 268 (1st Cir.2006). Although appellants argue
that Concentra controlled Justen during the collection process, that control
terminated upon Justen’s departure from their facilities; and moreover, appellants
failed to establish that Justen possessed “dangerous propensities” within the
meaning of the Restatement analysis giving rise to the duty to control Justen’s
conduct to prevent harm to others.
This conclusion impacts appellants’ reliance on Fed. Steel & Wire
Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 543 N.E.2d 769 (1989), for the
proposition that a “person [who] exercises control over real or personal property
and such person is aware that the property is subject to repeated third-party vandalism, causing injury to or affecting parties off the controller’s premises,” owes
a duty “to those parties whose injuries are reasonably foreseeable, to take adequate
measures under the circumstances to prevent future vandalism.” This duty is based
on the special relations between the tortfeasor and the possessor of property, who
had the ability to control the tortfeasor while that person was present on the
possessor of land’s property. Generally, that duty is extinguished when the
tortfeasor departs the property of the other. See, e.g., Fletcher v. Maryland Transit
Administration, 741 Fed.Appx. 146, 151 (4th Cir.2018) (school system is not “in
charge” of its students after hours and off the school grounds for the purposes of
controlling the conduct of those who injure others).
Further, Fed. Steel & Wire depends on the duty to control the conduct
of the tortfeasor to prevent injury to a third party. In this case, appellants’ theory
depends on their establishing the existence of a duty arising between the general
public and Concentra, such that Concentra owes a duty to the general public to
protect them from the harm caused by Justen based on a relationship between
Concentra and the general public. Those two concepts, the duty to protect arising
from the special relations between the actor and the injured party and the duty to
control the acts of another arising from the special relations between the actor and
the tortfeasor, are separate and distinct. See Godwin, 2020-Ohio-4834, 160 N.E.3d
372, at ¶ 19 (8th Dist.). There are no allegations in the complaint that Concentra
shared a special relation with appellants for the purpose of establishing a duty of
protection that would implicate Restatement Second, Section 315 — the duty to protect the injured person. See, e.g., Simpson, 73 Ohio St.3d 130, 135, 652 N.E.2d
702 (1995) (although a business owner owes a duty to protect business invitees from
criminal acts it knows or should have known of the substantial risk presented under
Restatement Second, Section 315, that duty does not extend off the business owner’s
premises). Appellants’ argument is a broad amalgamation of distinct concepts
giving rise to liability. At points in the discussion, appellants speak of Concentra’s
duty to control the conduct of Justen, while their main argument rests with
establishing a duty owed to the general public. We cannot accept this broad
discussion as a basis to reverse. Fed. Steel & Wire is not applicable.
Further complicating appellants’ broad generalization of the duty
element, as is applicable in this case, Concentra was hired by Sunbelt to perform an
on-demand task.3 If there is a duty owed by the independent contractor to third
parties, that duty arises under the terms of the contract: “The scope of the
contractor’s duties to third parties, if any, is generally limited to the duties assumed
under the contract.” Krause v. G & C Properties, 8th Dist. Cuyahoga No. 66379,
1994 Ohio App. LEXIS 4941, 6 (Nov. 3, 1994), citing Heneghan v. Sears, Roebuck &
Co., 67 Ohio App.3d 490, 494, 587 N.E.2d 854 (8th Dist.1990), Hendrix v. Eighth &
Walnut Corp., 1 Ohio St.3d 205, 438 N.E.2d 1149 (1982), Banks v. Otis Elevator Co.,
8th Dist. Cuyahoga No. 53059, 1987 Ohio App. LEXIS 10081 (Dec. 17, 1987),
Robinson v. J.C. Penney Co., 8th Dist. Cuyahoga Nos. 62389 and 63063, 1993 Ohio
3 It does not appear from the record that Concentra was hired to monitor employees. It was hired to perform drug-testing services, limited to collecting the specimens, upon request by Sunbelt. App. LEXIS 2633 (May 20, 1993), and Hill, 36 Ohio St.3d 36, 521 N.E.2d 780 (1988);
see also Church v. Fleishour Homes, Inc., 172 Ohio App.3d 205, 2007-Ohio-1806,
874 N.E.2d 795, ¶ 69 (5th Dist.) (collecting cases). Appellants have not included any
discussion with respect to interplay between the tort standard and the contractual
terms of Sunbelt and Concentra’s relationship.
Because appellants’ argument is solely based on their presumption
that Concentra owes a general duty to the public based on the general notion that all
persons owe a duty to all others under Ohio law, we cannot conclude that the trial
court erred. See App.R. 16(A)(7). It suffices for the purposes of this appeal that
appellants’ argument to the effect that Concentra owes a general duty of care to
protect third parties is not sufficient to establish the existence of reversible error in
light of black-letter law that independent contractors do not owe a duty of care to
third parties, especially in situations in which the plaintiff has not established the
existence of a special relationship with the defendant. See id.
Appellants next claim that Concentra is subject to liability under the
negligent undertaking doctrine as set forth in Restatement Second, Section 324A
(1965). That provision provides that
[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
It is not the actor’s undertaking of a task in and of itself, however, that subjects the
actor to potential liability. Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 583 A.2d
881, 883-884 (Vt. 1990), quoting Restatement Second, Section 324A. It is the
“‘failure to exercise reasonable care to protect his undertaking,’ resulting in either
(a) an increased risk of physical harm to the third person, (b) the assumption by the
actor of a duty owed by the second person to the third person, or (c) harm to the
third person resulting from reliance on the undertaking by the second or third
persons.” Id.
According to appellants, Concentra is subject to liability because
“Concentra knew or should have known” that the employer requested drug tests to
“protect the public from the physical harm and property damage caused by drug-
impaired employees, particularly those required to operate the employer’s cars,
trucks, heavy equipment, and even airplanes.” From that basis, appellants claim
that had Concentra identified the existence of synthetic urine being used to defeat
the tests, Justen would not have been employed by Sunbelt and in a position to drive
on the highway when he collided with the victims.
Appellants’ argument is novel in that they seek to hold the drug-
testing agency liable for the illegal conduct of one who was drug tested; however, it
overlooks several distinctions in their request to apply Restatement Second, Section 324A in order to establish the existence of a duty as between Concentra and
appellants. That section does not establish a duty as between the actor and the third
party — the question presented to this court for review.
Under Section 324A, one who undertakes to render services is
“subject to liability” to a third person if one of three conditions is met. The phrase
“subject to liability,” “denote[s] the fact that the actor’s conduct is such as to make
him liable for another’s injury, if the actor’s conduct is a legal cause thereof, and the
actor has no defense applicable to the particular claim.” (Emphasis added.)
Restatement Second, Section 5 (1965). In order to be subject to liability, the actor’s
conduct must first be the “legal cause” of the legally protected interest at issue. Id.
at Comment a. The phrase “legal cause” is further defined as the “causal sequence
by which the actor’s tortious conduct has resulted in an invasion of some legally
protected interest of another” “such that the law holds the actor responsible for such
harm.” Restatement Second, Section 9 (1965). In explaining “legal cause,” the
drafters stated that
[i]n order that a particular act or omission may be the legal cause of an invasion of another’s interest, the act or omission must be a substantial factor in bringing about the harm, and there must be no principle or rule of law which restricts the actor’s liability because of the manner in which the act or omission operates to bring about such invasion.
Id. at Comment b.
Appellants’ argument in support of adopting Section 324A as a
foundation to create a duty owed as between a drug-testing agency employed by
another company and a member of the general public does not include any discussion or relevant authority to explain whether Ohio’s general authority
establishing that no person or corporate entity owes a duty to protect third parties
from harm constitutes a restriction to the actor’s liability and that an independent
contractor’s duties owed to third parties is limited to their duty established through
their contract with another. We will not independently weigh in on that question
based on the overly broad brush with which appellants painted their arguments.
In additional support of their argument as to the applicability of
Section 324A, appellants cite Stevens v. Jeffrey Allen Corp., 131 Ohio App.3d 298,
722 N.E. 533 (1st Dist.1997). In that case, a motorist was killed after an oak tree
situated on the land owned or possessed by a public library fell on the plaintiff’s
vehicle van during a severe thunderstorm. Before the accident, an independent
contractor was hired to develop a grounds-maintenance program, including tree
inspections that never occurred. In an appeal from a defense verdict, the First
District panel recognized that the library was a property owner responsible for
ensuring that its trees did not endanger others and this duty extended to members
of the traveling public, including that plaintiff. The panel approvingly cited Section
324A and concluded that because the library had hired the contractor to fulfill this
obligation, the plaintiff was entitled to seek recovery for the contractor’s negligence
in fulfilling the duty owed by the landowner through the voluntary undertaking. Id.
at 305.
That reliance on the Restatement Second, Section 324A in Stevens is
curious. Under black-letter Ohio law, an employer of a contractor is generally not liable for the conduct of an independent contractor hired to perform a task, subject
to the well-known exceptions for nondelegable duties or inherently dangerous tasks.
Pusey v. Bator, 94 Ohio St.3d 275, 279, 762 N.E.2d 968 (2002). In other words,
when an independent contractor is hired to undertake a duty owed by another, the
employer of that independent contractor is not liable to a third party for any
negligent act of the contractor unless the duty was nondelegable. If the independent
contractor is negligent in the manner of performance of its task, the contractor itself
may be held liable based on its duty to perform its contractual obligations to
completely undertake the duty owed by the landowner with reasonable care as owed
to third parties. See, e.g., Crumb, 8th Dist. Cuyahoga No. 108321, 2020-Ohio-796,
at ¶ 31-38. Ohio largely recognizes the concepts distilled in Section 324A, but that
duty arises through the contractual relationship between the independent
contractor and the person or entity that hired them. See Krause, 8th Dist. Cuyahoga
No. 66379, 1994 Ohio App. LEXIS 4941, at 6; see also Huff v. FirstEnergy Corp.,
130 Ohio St.3d 196, 2011-Ohio-5083, 957 N.E.2d 3. Again, appellants have not fully
explained the interplay between the contractual obligations and their tort claims
against the independent contractor. We cannot substitute our own analysis on their
behalf. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d
900, ¶ 19.
And regardless, Stevens is distinguishable. In Stevens, it was
concluded that the landowner owed a duty to inspect trees on its property to prevent
harm to others. Id. In fulfillment of that duty, the landowner hired an independent contractor to completely take on the landowner’s duty, thereby extinguishing the
landowner’s liability to others for any negligent inspection of the trees on its
property. Sunbelt, on the other hand, was under no obligation to drug test its
employees, a point appellants conceded during oral argument,4 unless those
employees were subject to Ohio Department of Transportation drug-testing
requirements. It is undisputed that Justen was not required to submit to drug tests
for the state agency. Sunbelt thus voluntarily undertook the drug-testing obligation,
and through that voluntary undertaking, employed Concentra to collect the urine
specimen — its sole function. But Sunbelt’s liability for the conduct of its employees,
like Justen, was never extinguished. Sunbelt was vicariously liable for the motor
vehicle accident its employee caused. In other words, appellants’ argument is that
Sunbelt, arguably, voluntarily undertook a duty to the public to drug test its
employees and Concentra then voluntarily undertook the responsibility of collecting
the samples for testing. Stevens does not answer the question of whether Concentra
can be subject to liability built on another person or entity’s own voluntary
undertaking.
On this final point, appellants rely on the line of authority establishing
that drug-testing agencies owe a duty of care to the employees being tested to avoid
false-positive results: Stinson v. Physicians Immediate Care, Ltd., 646 N.E.2d 930,
934 (Ill.App.1995); Landon v. Kroll Laboratory Specialists, Inc., 91 N.Y.A.D.3d 79,
4 Appellants maintained that Justen was not subject to mandatory Ohio Department of Transportation drug-screening protocols and that Sunbelt voluntarily instituted the random drug-testing procedures for all its employees. 934 N.Y.S.2d 183, 194 (N.Y.A.D.2011), aff’d, 999 N.E.2d 1121 (N.Y.2013); Sharpe v.
St. Luke’s Hosp., 573 Pa. 90, 821 A.2d 1215, 1221 (2003); Shaw v. Psychemedics
Corp., 426 S.C. 194, 826 S.E.2d 281, 283-284 (2019); Mendez v. Houston Harris
Area Safety Council, Inc., 634 S.W.3d 154, 163 (Tex.App.2021); Duncan v. Afton,
Inc., 991 P.2d 739, 746 (Wyo.1999). These cases are not applicable. In those cases,
the question of liability focused on the individual test being performed, and the
individual harmed was one contemplated under the contractual agreement as
between the drug-testing agency and the employer. And moreover, the harm caused
by the alleged negligent act was immediate; the false-positive caused the employer
to sanction the employee.
In this case, the harm at issue is removed from the temporal
immediacy found in the above-mentioned duty-to-the-employee cases. Further,
providing voluntary, on-demand drug-testing services does not create a duty to
monitor an employee’s daily activity. It is a snapshot in time meant to illuminate
potential employment issues. Without more, we cannot conclude that those cases
are applicable to resolving the legal question presented in this appeal regarding the
duty to protect third parties from the harm caused by the illegal actions of another
person.
The existence of a duty hinges on the relationship between the
parties.5 In this case, appellants and Concentra share no relationship giving rise to
5 Appellants also claim that federal regulations require drug-testing agencies to
confirm the sufficiency of the specimen provided and its temperature, and to check the “color, foam, and odor of the sample.” Appellants’ argument on this point is limited, and a legal duty to protect. Under black-letter law, absent a special relationship, there is
no duty to protect third parties from physical harm caused by others. Because
appellants have not established the existence of a special relationship with
Concentra, we default to the general proposition that Concentra does not owe a duty
to the general public to protect them from others engaging in illegal activity.6
The decision of the trial court is affirmed.
It is ordered that appellees, cross-appellants recover from appellants, cross-
appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________ SEAN C. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, JR., P.J., and MICHAEL JOHN RYAN, J., CONCUR
they do not provide any authority demonstrating that a duty is created as between the drug-testing agency and the general public based on the federal regulations. It is not this court’s responsibility to provide arguments and a discussion on undeveloped arguments.
6 In light of this conclusion, we need not address Concentra’s argument regarding
superseding causation or the cross-appeal in which Concentra appealed the trial court’s resolution of an issue with apportionment as between nonparties.