Day on Torts
The Supreme Court of Arizona has ruled that persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others.
The defendant shared his prescribed drug (oxycodone) with others at a party. One of the women he shared the drugs with gave them to the plaintiff’s decedent, who died that night from the combined toxicity of alcohol and oxcyodone. The plaintiff (decedent’s mother) sued, and defendant denied that he owed a duty to the decedent.
The Court held that because Arizona had statutes prohibiting the sharing of prescription drugs a duty existed. The Court said that "[b]ecause [the decedent] is within the class of persons to be protected by the statute and the harm that occurred here is the risk that the statute sought to protect against, these statutes create a tort duty."
The case is Gipson v. Kasey, CV-06-0100-PR (S.C. Az. Jan. 2007). Read the opinion here.
NOTE: for those of you who are have no life other than the law, this opinon has a fascinating section that rejects the consideration of "foreseeability " as a factor in determining whether a duty exists. The Court said "we now expressly hold that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions."
Rather, the Court said, "[f]oreseeability *** is more properly applied to the factual determinations of breach and causation than to the legal determination of duty. *** We believe that such an approach desirably recognizes the jury’s role as factfinder and requires courts to articulate clearly the reasons, other than foreseeability, that might support duty or no-duty determinations."
Fascinating, isn’t it?