LEILA-JADE G. SANCHEZ AND TAYLOR N. SANCHEZ, MINORS, BY AND THROUGH JOSETTE SANCHEZ, THEIR GUARDIAN; JOSETTE SANCHEZ, AN INDIVIDUAL; THERESE CRUZ-BLAS AND DELBERT M. BLAS, AS CO-SPECIAL ADMINISTRATORS OF THE ESTATE OF GREGORY SANCHEZ, JR., DECEASED; ROBERT MARTINEZ, AN INDIVIDUAL; AND MICHELLE MARTINEZ, AN INDIVIDUAL, APPELLANTS, v. WAL-MART STORES, INC., A FOREIGN CORPORATION; LONGS DRUG STORES CO., A FOREIGN CORPORATION; WALGREEN CO., A FOREIGN CORPORATION; CVS PHARMACY, INC., A FOREIGN CORPORATION; RITE-AID, A FOREIGN CORPORATION; ALBERTSON‘S, INC., DBA SAV-ON PHARMACY, A FOREIGN CORPORATION; AND LAM‘S PHARACY, INC., A NEVADA CORPORATION, RESPONDENTS.
No. 47851
Supreme Court of Nevada
December 24, 2009
221 P.3d 1276
By the Court, HARDESTY, C.J.
both forms of prosecution are still pending
Finally, I want prosecutors and criminal defense attorneys to know that if a criminal complaint or information is filed and then the defendant is indicted on the same charges and additional charges, Turpin applies if the criminal complaint or information is dismissed and
Phillips, Spallas & Angstadt, LLC, and John W. Kirk, Las Vegas; Shook, Hardy & Bacon, LLP, and Frank C. Rothrock, Irvine, California, for Respondent Wal-Mart Stores, Inc.
Hutchison & Steffen, LLC, and Michael K. Wall and L. Kristopher Rath, Las Vegas, for Respondent Longs Drug Stores.
Backus Carranza and Leland Eugene Backus and Edgar Carranza, Las Vegas, for Respondent Walgreen Company.
Pyatt Silvestri & Hanlon and Carrie McCrea Hanlon, Las Vegas, for Respondent CVS Pharmacy, Inc.
Laxalt & Nomura and Lon A. Burke, Las Vegas; Kelly, Herlihy & Klein LLP and Jonathan Allan Klein, San Francisco, California, for Respondent Rite-Aid Corporation.
Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Brian K. Terry and Christopher J. Curtis, Las Vegas, for Respondents Albertson‘s, Inc., and Lam‘s Pharmacy, Inc.
OPINION
By the Court, HARDESTY, C.J.:
This appeal raises issues concerning whether a pharmacy owes a duty of care to unidentified third parties who were injured by a pharmacy customer who was driving while under the influence of controlled prescription drugs. In addressing this appeal, we consider two main arguments: (1) whether, under common-law principles, pharmacies have a duty to act to prevent a pharmacy customer from injuring members of the general public; and (2) whether Nevada‘s pharmacy statutory and regulatory laws allow third parties to maintain a negligence per se claim for alleged violations concerning dispensation of prescription drugs and maintenance of customers’ records.
The underlying matter arose after a pharmacy customer, while driving under the influence of prescription drugs, allegedly caused an automobile accident resulting in one person‘s death and severe injuries to another. Appellants filed a wrongful death and personal injury complaint against, among others, respondent pharmacies that filled multiple prescriptions for the woman driving the car. The appellants claimed that because the pharmacies had knowledge of the woman‘s prescription-filling activities, the pharmacies
We conclude that pharmacies do not owe a duty of care to unidentifiable third parties. Moreover, Nevada‘s pharmacy statutes and regulations concerning prescription drug dispensation and customer recordkeeping maintenance are not intended to protect the general public from the type of injury sustained in this case, and thus, do not support the appellants’ negligence per se claim. We therefore affirm.
RELEVANT FACTS AND PROCEDURAL HISTORY
On June 4, 2004, while driving on U.S. Highway 95 in Las Vegas, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire. Appellant Robert Martinez, Sanchez‘s co-worker, arrived at the scene to assist Sanchez. While Martinez and Sanchez were transferring items from Sanchez‘s vehicle into Martinez‘s vehicle, they were struck by defendant Patricia Copening‘s vehicle.1 As a result of the collision, Sanchez died and Martinez was seriously injured. Copening was arrested for driving under the influence of controlled substances.
Appellants, Sanchez‘s minor daughters, his widow, and the personal representatives of his estate, and Martinez and his wife, filed a wrongful death and personal injury complaint against Copening, two medical doctors, and a medical association. Through discovery, appellants learned that in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force sent a letter to the pharmacies that had dispensed to, and physicians who had written prescriptions for, Copening, concerning Copening‘s prescription-filling activities. The letter informed the pharmacies and physicians that from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies. Based on the Task Force letter, appellants moved the district court and were granted leave to file a second amended complaint to add the following defendants to the action: Wal-Mart Stores, Inc.; Longs Drug Stores Co.; Walgreen Co.; CVS Pharmacy, Inc.; Rite-Aid; Albertson‘s Inc., d/b/a Sav-on Pharmacy; and Lam‘s Pharmacy, Inc.
As to the pharmacies, the second amended complaint alleged that Copening was under the influence of controlled substances when the accident occurred and that the pharmacies had filled Copening‘s prescriptions after they had received a Task Force letter informing them of her prescription-drug activities. The complaint further asserted that after receiving the Task Force letter, the pharmacies continued providing Copening with the controlled substances that she used before the accident. The complaint did not allege any irregularities on the face of the prescriptions themselves. Nor did the complaint allege that the prescriptions presented by Copening to the pharmacies were filled by the pharmacies in violation of the prescriptions’ language, were fraudulent or forged, or involved dosages that, individually and if taken as directed, were potentially harmful to Copening‘s health.
The pharmacies answered the complaint and asserted, as an affirmative defense, that appellants’ second amended complaint failed to state a claim upon which relief could be granted. Thereafter, the pharmacies moved the district court to dismiss the claims asserted against them in appellants’ second amended complaint on the basis that no duty was owed to appellants. The pharmacies subsequently moved the district court for summary judgment. Appellants opposed the motions.
At the hearing on the pharmacies’ motions, the district court stated that no statute imposed a duty on the pharmacies to take action after receiving the Task Force letter. The district court further stated that absent a legislative duty, the case was governed by
DISCUSSION
The issues presented in this appeal raise two long-standing negligence principles. First, we consider whether pharmacies owe a duty of care to unidentified third parties injured by a pharmacy customer or whether public policy creates a duty of care for pharmacies, which when breached, supports a common-law negligence claim. Second, we decide if Nevada‘s pharmacy statutes and regulations create a statutory duty to support appellants’ negligence per se claim against the pharmacies.
Standard of review
A district court order granting an
Pharmacies do not have a duty to act to prevent a pharmacy customer from injuring an unidentified third party
Appellants argue that the district court improperly dismissed their common-law negligence claims for two reasons. First, appellants contend that the pharmacies had a duty to prevent harm to appellants because Copening was a customer to whom the pharmacies continuously dispensed drugs, and the pharmacies had notice from the Task Force letter that Copening was a potential drug abuser. Second, appellants assert that
No special relationship exists to justify imposing a duty on pharmacies in favor of third parties
It is well established that to prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. Turner, 124 Nev. at 217, 180 P.3d at 1175. With regard to the duty element, under common-law principles, no duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct. See Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978). An exception to this general rule arises, however, and an affirmative duty to aid others is recognized when (1) a special relationship exists between the parties or
As a threshold matter, to determine whether appellants can maintain a common-law negligence claim against the pharmacies for Copening‘s criminal act of driving while under the influence of controlled substances, we must consider the relationship between the parties and if a legal obligation can be imposed upon the pharmacies for the third-party appellants’ benefit. The issue of whether, under common-law principles, a special relationship exists between a pharmacy and a third party to justify imposing a duty of care for the third party‘s benefit is an issue of first impression. We find persuasive to our analysis a Florida District Court of Appeal opinion in-
proximate cause existed. An analysis of proximate cause, however, was not required, as the district court correctly noted the absence of a legal duty imposed on respondents in favor of appellants. Accordingly, we determine that we need not consider the proximate cause element in this matter. See Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (noting that this court will affirm a district court‘s order if the district court reached the correct result, even for the wrong reason).
volving a pharmacy‘s potential liability to a third party. Dent v. Dennis Pharmacy, Inc., 924 So. 2d 927 (Fla. Dist. Ct. App. 2006).
In Dent, a motorist, Dent, was involved in a collision with a pharmacy patron who drove while under the influence of prescribed medication and fell asleep at the wheel, causing injuries to Dent. Id. at 928. Dent filed a negligence action against the pharmacy, alleging that because the pharmacy voluntarily undertook the duty of warning the patron about the prescription drug‘s effect on driving, the pharmacy owed a duty of care to Dent, the injured motorist. Id. at 929. The pharmacy moved the trial court to dismiss the action on the basis that it owed no duty to an unidentified third party. The trial court agreed and dismissed Dent‘s complaint. Id.
On appeal, the Dent court recognized that in the context of professional relationships, the duty element of negligence could be established in one of two ways: (1) a plaintiff having a direct relationship with the defendant, or (2) by establishing that the plaintiff is a known or identifiable third party to whom the defendant owes a legal duty. Id. The court determined that no duty of care was owed to Dent because she had no direct relationship with the pharmacy; the pharmacy merely filled its customer‘s prescription and warned the customer of the medication‘s side effects. Id. The court further concluded that Dent was an anonymous member of the driving public and was therefore not a known or identifiable third party. The pharmacy had no control over whether its customer would take the medication and then drive, or even take the medication at all. Id. Therefore, a finding that Dent was a known or identifiable third party to whom the pharmacy owed a legal duty “‘under those circumstances would create a zone of risk [that] would be impossible to define.‘” Id. (quoting Cheeks v. Dorsey, 846 So. 2d 1169, 1173 (Fla. Dist. Ct. App. 2003)). Thus, the pharmacy‘s actions did not create a legal duty in favor of the motoring public.
Following the Florida court‘s reasoning, we conclude that in this matter the pharmacies did not owe a duty to the third-party appellants. The pharmacies have no direct relationship with the third-party appellants. In addition, as in Dent, the appellants in this matter are unidentifiable members of the general public who were unknown to the pharmacies.3 Thus, the pharmacies’ acts of
pensing prescription drugs to Copening did not create a legal duty. We conclude that the district court did not err in dismissing appellants’ negligence causes of action asserted against the pharmacies on this ground.4
NRS 453.1545 ‘s public policy does not create a duty of care for pharmacies
Appellants allege that while
1. The Board and the Division shall cooperatively develop a computerized program to track each prescription for [specific] controlled substance[s] . . . filled by a pharmacy that is registered with the Board or that is dispensed by a practitioner who is registered with the Board. The program must:
macist may fill the prescription if “the pharmacist reasonably believes, in his professional judgment, that the prescription is not fraudulent or harmful to the patient‘s health or is lawful or for a legitimate medical purpose.
(a) Be designed to provide information regarding:
(1) The inappropriate use by a patient of [specific] controlled substances . . . to pharmacies, practitioners and appropriate state agencies to prevent the improper or illegal use of those controlled substances.
The Board or Division are required, however, to report any suspected fraud or illegal activity to law enforcement or the appropriate occupational licensing board.
Thus, the legislative history demonstrates that
Nevada‘s pharmacy statutes and regulations do not support appellants’ negligence per se claim against the pharmacies
Appellants assert that the district court erred in dismissing their negligence per se claim against the pharmacies because the pharmacies violated a number of Nevada statutes and regulations enacted to protect the general public, of whom the appellants are members, from the unlawful distribution of controlled substances.5 The pharmacies counter that the statutes and regulations relied on by appellants do not mandate that a pharmacist must refuse to fill a valid prescription for the general public‘s protection.
A negligence per se claim arises when a duty is created by statute. Torrealba v. Kesmetis, 124 Nev. 95, 178 P.3d 716 (2008). A civil statute‘s violation establishes the duty and breach elements of negligence when the injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect. Ashwood v. Clark County, 113 Nev. 80, 86, 930 P.2d 740, 744 (1997); Sagebrush Ltd. v. Carson City, 99 Nev. 204, 208, 660 P.2d 1013, 1015 (1983). But a statute that regulates the communication of information regarding the administration of drugs does not impose a duty on a pharmacy that runs to an unidentifiable third party. Crippens v. Sav On Drug Stores, 114 Nev. 760, 763 n.1, 961 P.2d 761, 763 n.1 (1998).
The statutes and regulatory provisions the appellants rely on to assert a negligence per se claim against the pharmacies are not in-
tended for the general public‘s protection or to protect against any injury that the third-party appellants may have sustained. The duty owed under these statutes or regulations is to the person for whom the prescription was written, the pharmacy‘s customer, if anyone, and not for the general public‘s protection. And although various statutory and regulatory provisions may express standards
CONCLUSION
We affirm the district court‘s order dismissing appellants’ action against the pharmacies for failure to state a claim upon which relief can be granted.7
PARRAGUIRRE, DOUGLAS, GIBBONS, and PICKERING, JJ., concur.
CHERRY, J., with whom SAITTA, J., agrees, dissenting:
I differ with my colleagues as to their resolution of this appeal. In particular, I conclude that the district court erred when it granted the pharmacies’ motions to dismiss because the appellants have sufficiently stated common-law negligence and negligence per se claims that preclude dismissal. I therefore dissent.
DISCUSSION
Common-law negligence cause of action
The majority concludes that no special relationship exists to extend a duty of care from the pharmacies to the third-party appellants. I disagree with this conclusion. This court has recognized a special relationship between an innkeeper-guest, teacher-student, and employer-employee. See Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001). The relationship between a pharmacy and pharmacy customer should also be considered a special relationship. Thus, in my opinion, appellants’ allegations in their complaint are legally sufficient to constitute a common-law negligence cause of action.
Generally, a defendant does not have a duty to control another‘s dangerous conduct or to warn others when dangerous conduct arises. Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978). But an exception to this general rule occurs when a special relationship exists between the defendant and the actor who allegedly caused the injury. Id. If a special relationship exists, the defendant has a duty to take measures to protect foreseeable victims from foreseeable harm. See Elko Enterprises v. Broyles, 105 Nev. 562, 565-66, 779 P.2d 961, 964 (1989); El Dorado Hotel v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 984 P.2d 750 (1999). Here, contrary to the majority‘s position, I determine that the pharmacies owed appellants a duty of care to, among other things, investigate the validity of Copening‘s prescriptions or to refuse to fill her prescriptions, if warranted, based on the special relationship that exists between a pharmacist and pharmacy customer, together with the information distributed by the Task Force. While I conclude that sufficient information exists to reverse the district court‘s dismissal of appellants’ common-law negligence claim, because the underlying proceedings are at an early stage of the litigation, there also remain unanswered questions relating to
Special relationship element of common-law negligence cause of action
A pharmacist‘s professional standards of care, considered with the notice contained in the Task Force letter, justifies extending the duty owed by the pharmacies under a common-law negligence cause of action to these appellants. Not only do pharmacists possess an expertise in the dispensation of prescription drugs,
Based on a pharmacist‘s professional standards of care, the Legislature contemplated that pharmacists may be subject to civil liability for improperly dispensing prescription drugs when it enacted
Generally, the relationship between a customer and pharmacist does not establish a duty in favor of third parties. This case, however, includes a component that the majority ignores—notice. The actual notice to the pharmacies contained in the Task Force letter (which, according to the complaint, was sent to and received by all the pharmacies in this action), together with a pharmacist‘s professional standard of care, noted above, clearly refutes the majority‘s conclusion that no special relationship exists to justify extending a duty of care owed by the pharmacies to the appellants.
Appellants’ second amended complaint alleges that the pharmacies that received the Task Force letter outlining Copening‘s prescription-filling activities were informed that Copening had received 4,500 hydrocodone pills within a 12-month period by having numerous prescriptions filled at 13 different pharmacies.1 The complaint also contends that despite receiving the Task Force letter the pharmacies continued to fill narcotic or SOMA prescriptions for
Copening.2 It is
Here, the pharmacists had a duty to review Copening‘s prescription records, including giving consideration to the Task Force letter, before filling her next prescription. In light of the Task Force letter identifying Copening‘s prescription history, the pharmacies were required to evaluate the prescription‘s therapeutic appropriateness (considering possible drug abuse, overuse of a particular drug, or improper dosages or treatment durations).
For these reasons, I conclude that the first element to the common-law exception for a duty of care has been established. The next issue presented is whether the harm created by the pharmacies’ dispensation of the drugs to Copening was foreseeable.
Foreseeability element of common-law negligence cause of action
This court has held that “[a] negligent defendant is responsible for all foreseeable consequences proximately caused by his or her negligent act.” Taylor v. Silva, 96 Nev. 738, 741, 615 P.2d 970, 971 (1980). A defendant‘s liability can be extinguished when an unforeseeable intervening cause occurs between a defendant‘s negligence and a plaintiff‘s injury. El Dorado Hotel v. Brown, 100 Nev. 622, 628-29, 691 P.2d 436, 441 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243, 984 P.2d 750 (1999). But when a “third party‘s intervening intentional act is reasonably foreseeable, a negligent defendant is not relieved of liability.” Id. at 629, 691 P.2d at 441. The issue of foreseeability, thus, can be a mixed question of law and fact. Elko Enterprises v. Broyles, 105 Nev. 562, 566, 779 P.2d 961, 964 (1989). Because the majority concludes that no special relationship exists between the pharmacies and third-party appellants to establish a duty of care owed to appellants, they decline to reach the foreseeability issue. As noted above, however, I conclude that the relationship between the pharmacy and its customer is sufficient to establish the first duty element and that sufficient allegations were pleaded by appellants to address the foreseeability element that precluded the district court from dismissing the common-law negligence cause of action.
According to appellants’ second amended complaint, the Task Force notified the pharmacies that Copening was potentially abusing drugs. The Task Force informed each pharmacy that Copening went, during a 12-month period, to multiple pharmacies to fill her prescriptions. According to appellants, in the months before the accident, the pharmacies continued to fill Copening‘s prescriptions for hydrocodone and SOMA and that the amount of prescriptions filled for Copening provided her with at least 25 pills a day. Why Copening obtained this amount of a narcotic prescription in a 12-month period is not clear, but it may involve misuse of prescription drugs. In my view, these are reasonable inferences that could be drawn from the facts alleged in the appellants’ complaint, and the district court was required to accept them as true. See Malfabon v. Garcia, 111 Nev. 793, 796, 898 P.2d 107, 108 (1995) (providing
Although the appellants’ allegations are not conclusive of the pharmacies’ potential liability, appellants were not required to prove their claim against the pharmacies while defending a motion to dismiss. See Malfabon, 111 Nev. at 796, 898 P.2d at 108. At a minimum, questions of fact remain as to whether the pharmacies had actual or inquiry notice that Copening was potentially abusing drugs and that she was purportedly pharmacy shopping. Thus, I conclude that sufficient allegations, raised in appellants’ pleadings, regarding foreseeability exist and coupled with my determination that a special relationship, together with the actual notice received by the phar-macies, exists to support imposing a duty on the pharmacies for appellants’ benefit. I would reverse and remand this issue to the district court for further proceedings.
Negligence per se cause of action that precludes dismissal
The majority concludes that a negligence per se claim is unavailable to appellants because the statutes and regulations relied on by appellants were not intended for the general public‘s protection or to protect against any injury that third parties may sustain. I disagree.
A negligence per se claim is available when a defendant violates a statute that is designed to protect others against the type of injury that was incurred. Ashwood v. Clark County, 113 Nev. 80, 86, 930 P.2d 740, 744 (1997). The Legislature has recognized that pharmacology affects public safety and welfare.
Nevada law requires pharmacists to review customers’ records before filling prescriptions to determine prescriptions’ therapeutic appropriateness.
Based on the enactment of these statutory and regulatory provisions, it is apparent to me that the Legislature intended to prevent pharmacy shopping and the overfilling of certain controlled substances, and ultimately, to protect the general public from prescription-drug abuse and its effects. The abuse of either hydrocodone or SOMA can impair one‘s driving ability. In my opinion, motorists, like appellants, who are injured by an individual who is driving under the influence of prescription drugs are in the class of persons that the Legislature intended to protect and the injury is a type that the statutes and regulations intended to prevent. Having reached this conclusion, I would reverse the district court‘s dismissal of appellants’ negligence per se claim and remand this matter to the district court for additional proceedings.
CONCLUSION
In my view, the appellants’ complaint sufficiently states a common-law negligence cause of action because the special relationship and foreseeability elements to create an affirmative duty on the pharmacies to act for the appellants’ benefit have been ade-quately pleaded. The appellants’ negligence per se claim should similarly not have been dismissed under