Pharmacy Faces Potential Liability Exposure for Unsafe Premises

Joseph L. Fink III, BSPharm, JD, DSC (Hon), FAPHA;

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June 24, 2024

Pharmacy Times

June 2024

Volume 90

Issue 6

Pharmacy Faces Potential Liability Exposure for Unsafe Premises

Author(s):

Joseph L. Fink III, BSPharm, JD, DSC (Hon), FAPHA

This case highlights the legal principle of premises liability

Facts of the Case

The injured party was in the parking lot of a branch of a national pharmacy chain in a metropolitan area when he was shot multiple times during a robbery by an unknown assailant. The shooting resulted in his being in a coma for 3 months. He experienced permanent nerve damage, speech and hearing deficiencies, and chronic pain and incurred more than $700,000 in health care bills.

Image credit: izzuan | stock.adobe.com

He filed a lawsuit against the chain based on the legal principle of premises liability, which is the legal duty of a property owner to maintain a reasonably safe location. The jury ruled in favor of the plaintiff, concluding that the chain was 95% liable for his injuries and awarding him $42.7 million. The pharmacy chain appealed that decision, arguing that there was insufficient evidence to show that it caused or contributed to the injury and damage, nor did it have superior knowledge of the danger existing on its premises where the shooting took place.

However, the state court of appeals found that many employees had concerns about safety around the store. They identified a lack of security, poor lighting in the parking lot, and 3 violent robberies at the pharmacy in recent years. Furthermore, female employees were escorted to their cars when leaving work.

About the Author

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is professor emeritus of pharmacy law and policy and former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.

The appellate court pointed to a state law that said a premises liability claim must show that the defendant had knowledge of the existence of a hazard and that the plaintiff lacked knowledge of the danger despite the exercise of ordinary care. The court concluded that there was sufficient evidence for the trial court jury to conclude that the robbery was reasonably foreseeable. Thus, the chain lost again at the level of the intermediate court of appeals and took the matter to the state Supreme Court, which affirmed the decisions of the trial court and the court of appeals, ruling in favor of the injured plaintiff.

The Court’s Reasoning

The point of departure for the court was the notion that a “proprietor owes its invitees a duty ‘to exercise ordinary care in keeping the premises and approaches safe.’ ” An additional settled point in the state law is that “[although] a proprietor is ‘bound to exercise ordinary care to protect the invitee from unreasonable risks of which he has knowledge, he is not an insurer of the invitee’s safety.’” And even more directly on point for this case, “the law recognizes that when an invitee is injured by a third party’s intervening criminal act, the proprietor is generally insulated from liability; an exception to this general rule arises, however, where the proprietor had sufficient reason to anticipate such criminal conduct.”

The court also pointed to a precedent that “if the proprietor has reason to anticipate a criminal act, [they have] a duty to exercise ordinary care to guard against injury from dangerous characters.” It summed its focus for the review on the precedent that “a landlord only has a duty to protect tenants from the criminal attacks of third parties if those attacks are foreseeable.”

Generally, whether the crime was foreseeable is a question of fact for the jury. Evidence of substantially similar prior criminal activity is typically central to this question. “Knowledge of past criminal conduct can give a proprietor ‘reason to anticipate’—and thus protect against—future criminal conduct on the premises,” the court wrote in the decision.

This pharmacy location had previously employed a security guard. After the position was eliminated, 3 crimes occurred at the location prior to the unfortunate shooting that permanently injured the plaintiff. Therefore, the court said “there can be little question that a jury would be authorized to find that the harm to [the victim]— being shot by a robber in the parking lot—is the kind of harm that is [a] probable and natural consequence of the failure to take adequate security measures to protect the property, including the parking lot, from armed robberies.”