Corbitt v. Walgreen Co., CIVIL ACTION NO. 7:14-CV-17 (MTT)

BREANNA CORBITT, Plaintiff, v. WALGREEN CO., Defendant.

CIVIL ACTION NO. 7:14-CV-17 (MTT)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION

April 15, 2015

ORDER

Plaintiff Breanna Corbitt has sued Defendant Walgreen Co. for negligence based on her arrest after an individual using her driver's license presented a forged prescription and a Walgreen pharmacist reported it. She also sued the City of Valdosta, Georgia ("City"), but the Court granted the City's motion for summary judgment. (Docs. 21; 39). Before the Court is Walgreen's motion for summary judgment. (Doc. 18). For the following reasons, the motion is GRANTED in part and DENIED in part.

I. BACKGROUND

On August 5, 2012, an individual presented a prescription for Lortab to pharmacist Harold Schweitzer¹ at a Walgreen pharmacy in Valdosta, Georgia. Schweitzer filled the prescription the same day. (Docs. 29 at 11:6-10; 31-3). The prescription appeared to be written to Breanna Corbitt by physician assistant Keith Munoz, and the individual who picked up the prescription had Corbitt's driver's license. (Docs. 29 at 23:14-18, 31:2-9, 35:8-13, 38:7-11; 31-3). Corbitt's driver's license was scanned and saved in the pharmacy's computer system. (Doc. 29 at 86).

Munoz's supervising physician later informed Schweitzer that the prescription was fraudulent, and Schweitzer reported the fraudulent prescription to the police. (Doc. 29 at 19:13-24, 20:13-21). Schweitzer spoke to Detective Travis Sparks with the Valdosta Police Department and informed Detective Sparks that he discovered the Lortab prescription was fraudulent after he filled it, that the person who presented the prescription had Corbitt's driver's license, and that "he confirmed the picture on the driver's license was in fact the person in the drive through." (Doc. 31-3 at 1). Corbitt was arrested and charged with obtaining a prescription by forgery, but the charges were ultimately dropped. (Docs. 18-2; 18-3). According to Corbitt, she lost her wallet containing her driver's license in early July 2012 and thus was not the person who presented the prescription. (Docs. 24 at 14:11-15:12, 17:8-13; 31-4).

Based on these events, Corbitt has sued Walgreen for negligence and has also sought punitive damages and attorneys' fees.

II. DISCUSSION

A. Summary Judgment Standard

A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is not genuine unless, based on the evidence presented, "'a reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may support its assertion that a fact is undisputed by "citing to particular parts ofmaterials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).

The burden then shifts to the non-moving party, who must rebut the movant's showing "by producing ... relevant and admissible evidence beyond the pleadings." Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-moving party does not satisfy its burden "if the rebuttal evidence 'is merely colorable, or is not significantly probative' of a disputed fact." Id. (quoting Anderson, 477 U.S. at 249-50). Further, where a party fails to address another party's assertion of fact as required by Fed. R. Civ. P. 56(c), the Court may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). However, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. ... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 255.

B. Negligence Claim²

The Plaintiff must prove the following elements to state a negligence claim under Georgia law:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.

Tucker Fed. Sav. & Loan Ass'n v. Balogh, 228 Ga. App. 482, 483, 491 S.E.2d 915, 917 (1997) (internal quotation marks and citation omitted). The Defendant first argues the Plaintiff has not shown it owed her a duty to "adequately check[ ] the photo identification presented," as asserted in her complaint, or a duty not to report suspected criminal activity to the police. However, the Plaintiff is not contending the Defendant owed her a duty not to report criminal activity; rather, she is asserting the Defendant owed her a duty not to negligently report she was the perpetrator.³

As the source of the Defendant's duty, the Plaintiff points to "the general duty one owes to all the world not to subject them to an unreasonable risk of harm." (Doc. 31-1 at 7); see Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 201, 296 S.E.2d 693, 695 (1982). In response, the Defendant argues "[d]uty cannot be divorced from foreseeability," and the Plaintiff has not shown her injury was a "foreseeable consequence" of its conduct. See Love v. Morehouse Coll., Inc., 287 Ga. App. 743, 744-45, 652 S.E.2d 624, 626 (2007).

With reference to foreseeability of injury, the correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.

Freeman v. Wal-Mart Stores, Inc., 281 Ga. App. 132, 136, 635 S.E.2d 399, 402 (2006) (footnote omitted). The Court disagrees that, as a matter of law, the Plaintiff's injury was not a foreseeable consequence of the Defendant's conduct.⁴ The relevant inquiry is not, as the Defendant frames it, whether "it was [ ] foreseeable that, by accepting and filling the prescription, Walgreen Co. was placing a third party (the real Breanna Corbitt) at risk of later being arrested for prescription fraud." (Doc. 35 at 5). Instead, the proper inquiry is whether it was reasonably foreseeable that "some injury would result from [Schweitzer's] act" in reporting the fraudulent prescription to the police.

A reasonable jury could conclude the Plaintiff's injury—her allegedly wrongful arrest and resulting damages—was reasonably foreseeable based on Schweitzer's conduct in reporting to the police that the person who presented the fraudulent prescription matched the Plaintiff's driver's license photo. Thus, the Defendant is not entitled to summary judgment on the basis that it owed no duty to the Plaintiff. See Newmann v. United States, 938 F.2d 1258, 1263 (11th Cir. 1991) ("The question [of] whether an injury is foreseeable is for the factfinder, and can only constitute an issue of law where the evidence is 'plain, palpable and indisputable.'" (quoting Levangie v. Dunn, 182 Ga. App. 439, 441, 356 S.E.2d 88, 90 (1987))). Though neither the Plaintiff nor the Defendant cites a case addressing whether there is a duty owed when reportingsomeone suspected of criminal activity,⁵ there is support for such a duty in Georgia law. Cf. Kroger Co. v. Briggs, 323 Ga. App. 256, 261, 746 S.E.2d 879, 883 (2013) (holding evidence was sufficient for jury to conclude Kroger was negligent in reporting to police that customer presented counterfeit money).

The Defendant further argues that, assuming it owed the Plaintiff a duty, it complied with this duty by requiring the person presenting the prescription to show photo identification, scanning the identification into the computer system, and confirming the name on the identification matched the name on the prescription. (Doc. 18-5 at 8). The Plaintiff contends Schweitzer breached Walgreen's policies that delineate actions a pharmacist should take when filling a prescription, such as contacting the prescriber to verify the prescription is valid and documenting "efforts used to validate good faith dispensing," which is illustrative of negligence. (Doc. 31-5 at 2, 4). She also points to characteristics of the prescription itself that indicated it did not come from Munoz's prescription pad, testimony from Schweitzer that he was alerted to the possibility of Munoz's prescription pad being connected to a fraudulent prescription scheme,⁶ and testimony that Walgreen filled a prescription for Lortab written to Breanna Corbitt by Munoz approximately one month before the August 2012 prescription.⁷ (Docs. 31-5 at 2-3; 30 at 15:4-16:4; 29 at 25:18-25, 39:10-13, 49:6-8; 31-2).

The Defendant contends the Court may not consider the Plaintiff's arguments about alleged non-compliance with the Defendant's policies or the Defendant's decision to fill the July 2012 prescription because these allegations are outside the scope of the complaint. See Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1313, 1315 (11th Cir. 2004) (holding plaintiff cannot raise a new legal claim for the first time in response to opposing party's summary judgment motion). Unlike the plaintiff in Gilmour, the Plaintiff has not attempted to assert an entirely new claim in her response brief. She has asserted additional facts...