Accommodating a customer spells trouble for Rx'er

Drug Store News, Feb 20, 1989

Accommodating a customer spells trouble for Rx'er

TEXAS, 1987 - A pharmacist-owner of a drug store in Canton, Texas received a call from a regular customer who was complaining about wolves attacking his livestock. The customer asked the pharmacist if he would sell him strychnine to help stop wolves from attacking his livestock while they were calving. The pharmacist told the rancher that he did not carry the poison and suggested he contact area farm and ranch stores who would be more likely to carry the potent chemical.

Later that day, the customer called the pharmacist and said he had no luck in finding the strychnine. He said he needed the poison "immediately" to prevent further loss of livestock. In order to accommodate his customer, the pharmacist contacted his drug wholesaler. Arrangements were made for the customer to go to the wholesaler's warehouse to pick up a quantity of the poison. Subsequently, the strychnine was given to the customer in person and the wholesaler charged the sale to the pharmacy.

It was later learned that the customer did not purchase the strychnine for the purpose of killing wolves, but, apparently, to kill his wife. The pharmacist said that at no time did he ever have any idea that the strychnine was going to be used to harm or kill the customer's wife.

A lawsuit was instituted that alleged the pharmacist and the drug wholesaler sold the strychnine contrary to the provisions of federal and state law and contrary to the regulations of the Environmental Protection Agency. It was further alleged that the violation of law was evidence of negligence per se and was a direct and proximate clause of the death of the customer's wife. The plaintiffs contended that the pharmacist was not a licensed dealer of strychnine as required by Texas law.

They also alleged that the pharmacist and wholesaler failed to determine that the customer was not a certified applicator as required under state law.

This case argued the issue of direct cause. Rather than reviewing violations of state and federal law, the court turned directly to consider whether the evidence conclusively established that the alleged negligence on the part of the defendants was the proximate cause of the death of the customer's wife.

The court noted the longstanding rule that liability will not attach to a negligent act unless it is the proximate cause of the injury sustained. The negligent act must be a substantial factor in bringing about the injury. Direct cause also requires the element of foreseeability. Foreseeability is satisfied by showing that a person of ordinary intelligence would have anticipated the danger to others by his negligent act. Were the defendants found liable?

RESULTS: The evidence showed that neither the pharmacist nor the drug wholesaler had any knowledge of any facts even remotely suggesting that the rancher, at the time the poison was purchased, had any motive to injure or murder his wife.

In fact, the pharmacists honestly believed that his customer intended to use the strychnine to poison the wolves who were killing his cows and newborn calves. Thus, even if the pharmacist and drug wholesaler were negligent in providing the customer with the poison, they did not proximately cause the wife's death and were not liable to her survivors in the wrongful death lawsuit.