Sanchez ex rel. Sanchez v. Wal-Mart

• Decision Date: 24 December 2009
• Docket Number: No. 47851.,47851.
• Citation: 221 P.3d 1276
• Parties: 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., d/b/a Sav-On Pharmacy, a Foreign Corporation; and Lam's Pharmacy, Inc., a Nevada Corporation, Respondents.
• Court: Nevada Supreme Court

221 P.3d 1276

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., d/b/a Sav-On Pharmacy, a Foreign Corporation; and Lam's Pharmacy, Inc., a Nevada Corporation, Respondents.

No. 47851.

Supreme Court of Nevada.

December 24, 2009.

Marquis & Aurbach and Phillip S. Aurbach and Micah S. Echols, Las Vegas; Patti, Sgro & Lewis and Stephen K. Lewis, Las Vegas; Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas, for Appellants.

Phillips, Spallas & Angstadt, LLC, and John W. Kirk, Las Vegas; Shook, Hardy & Bacon, LLP, and Frank C. Rothrock, Irvine, CA, 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, CA, 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.

Before the Court En Banc.

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 owed appellants a duty of care to not fill the woman's prescriptions. The pharmacies filed a motion to dismiss the action, which the district court granted after finding that the pharmacies did not owe appellants a statutory duty of care, and thus, that appellants' claims failed to state a valid cause of action.

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 Nevada's dram-shop cases and that there appeared to be no material difference between a bartender providing a customer alcohol and a pharmacist filling a customer's prescription, and therefore, proximate cause did not exist.² Thereafter, the district court entered a summary order that granted the pharmacies' motions to dismiss under NRCP 12(b)(5) and denied as moot the pharmacies' summary judgment motions. The court subsequently certified its order as final under NRCP 54(b). This appeal followed.

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 NRCP 12(b)(5) motion to dismiss is subject to rigorous appellate review. Lubin v. Kunin, 117 Nev. 107, 110-11, 17 P.3d 422, 425 (2001). Similar to the trial court, this court accepts the plaintiffs' factual allegations as true, but the allegations must be legally sufficient to constitute the elements of the claim asserted. Malfabon v. Garcia, 111 Nev. 793, 796, 898 P.2d 107, 108 (1995). In reviewing the district court's dismissal order, every reasonable inference is drawn in the plaintiffs' favor. Id. Accordingly, to prevail in this appeal, the appellants must demonstrate that a duty of care was owed to them by the pharmacies, which is a question of law that we review de novo. Turner v. Mandalay Sports Entm't, 124 Nev. ___, ___, ___, 180 P.3d 1172, 1175, 1177 (2008).

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 NRS 453.1545 establishes a public policy duty to protect the general public, including appellants. The pharmacies counter that no special relationship exists between the pharmacies and appellants, and that no public policy duty is created by NRS 453.1545's enactment. We agree with the pharmacies' position that the district court properly declined to impose a duty on the pharmacies for the appellants' benefit.

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...