Breach of Duty To Parties Outside a Contract

The Court of Appeals of New York recently ruled in favor of the plaintiff on a motion in the case of Landon v. Kroll Laboratory Specialists. The plaintiff, Eric Landon, accomplished the noteworthy feat of getting the highest court in the state of New York to rule in his favor despite representing himself without benefit of an attorney! Although the case was largely about the tort of negligence, it implicated contractual obligations in a somewhat novel way that, when read with the previous and recent line of cases establishing that mere breach of contract is not a tortious act, serves to create a deeper understanding of how tort and contract law may be intertwined in this jurisdiction.

Background of the Case

The plaintiff was on probation and as part of his probation agreement, agreed to allow himself to be randomly tested for drugs, in an agreement made with the Orange County Probation Department (“The County.”) The County retained the defendant, Kroll Labs, a Louisiana corporation to do the actual drug testing laboratory procedures. The County and Kroll had a contractual agreement to do the testing.

In 2007, Landon’s probation officer asked him to get a drug test. Landon provided an oral saliva sample to Kroll. Interestingly, Landon decided to have an independent lab perform an independent drug test, via blood, to protect himself from the possibility of a false positive test result by Kroll.

Kroll indeed returned a positive test result for TetraHydroCannibinol (THC) which is one of the active ingredients in cannabis or marijuana. However, and luckily for the plaintiff, the independent blood test returned a negative result.

What then, does the record reflect about this discrepancy: a positive test vs. a negative with a man’s freedom from incarceration at stake? The record reflects that Kroll Lab’s procedures were incredibly shoddy, defective, violated established procedures and standards, and generally, as plaintiff alleged, were at least negligent in nature. This sadly partially coincides with recent discoveries that drug testing companies retained by law enforcement may, at least in some cases, deliberately return samples falsely marked as positive because of perverse incentives to do so or employee misconduct.

Landon, despite having the full weight of evidence on his side, had to fight a difficult and uphill battle with state authorities, using the independent test and the defects with Kroll, to preserve his freedom. After the charges against him were dropped, he then sued Kroll for negligence and under the theory they had a policy of deliberate indifference to his rights.


Negligence is defined as the breach of a legal duty owed. Thus the key question in this case became whether a duty was owed by Kroll to Landon. The confusingly named Supreme Court of New York (actually the lowest court in the State) granted Kroll’s motion to dismiss, because it felt that no duty was owed. This was a horrendous decision, and did nothing to quell suggestions by criminal law commentators that the justice system exists primarily to perpetuate itself as a moneymaking endeavor by deferring to the State and excusing bad conduct by State actors rather than actually serving justice.

The appellate division reversed this decision, and the High court affirmed it. It stated that in certain circumstances a party to a contract, such as Kroll, owed a duty to others outside the contract. Citing Espinal v. Melville Snow Contrs. the court reasoned that such a duty may arise when the contracting party fails to exercise reasonable care in the performance of its contractual obligations and such failure directly causes or forces a harm on another. In this case the violation of testing standards with respect to the plaintiff’s own biological sample was a situation that seemed to meet this legal standard. It is important to note that this is not a clear win for the plaintiff – because this question was asked in the context of a motion to dismiss, it is read in the light most favorable to plaintiff. Now that the claim survived the motion to dismiss, it must be fully litigated at the Supreme Court level.

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