Meros v. Sunbelt Rentals, Inc.

[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.