UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50473
Summary Calendar
ANGELA WILLIAMS
Plaintiff - Appellant
VERSUS
ALBERTSONS, INC.
Defendant - Appellee
Appeal from the United States District Court
For the Western District of Texas
(MO-95-CV-3)
March 13, 1996
Before HIGGINBOTHAM, DUHÉ AND EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Plaintiff sued Albertsons, Inc. for negligence and slander
because its pharmacist refused to fill her prescription, called her
a thief and a forger and told other pharmacists she was a thief and
a forger. The district court, sitting in diversity, granted
summary judgment because plaintiff’s slander claims are barred by
the statute of limitations and because Albertsons is under no duty
to fill Plaintiff’s prescription. Plaintiff does not contest the
dismissal of her slander claims but argues that Albertsons has a
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
duty to fill her prescription. Finding no duty, we affirm.
Plaintiff suffers from atopic dermatitis, a condition which is
not cured but managed. Delays which occurred after the pharmacist
refused to fill Plaintiff’s prescription aggravated the condition
to the point that the topical medication was not sufficient, and
Plaintiff was required to undergo injections. Plaintiff argues
that Albertsons was negligent and that its negligence caused her
injuries. To recover in negligence, however, Plaintiff must
establish that Albertsons was under a duty to fill the
prescription. Otis Engineering Corp. v. Clark, 668 S.W.2d 307
(Tex. 1983). The existence of a duty is a threshold legal
determination reviewed de novo. Willis v. Roche Biomedical
Laboratories, Inc., 21 F.3d 1368 (5th Cir. 1994); El Chico Corp. v.
Poole, 732 S.W.2d 306 (Tex. 1987).
Plaintiff or her parents filled her prescriptions at the
Albertsons pharmacy for many years prior to the December, 1993
refusal. Plaintiff argues that this long-term relationship imposed
a duty upon Albertsons to fill future prescriptions citing Stuart
v. Western Union, 66 Tex. 580, 18 S.W. 351 (Tex. 1885), Billings v.
Atkinson, 489 S.W.2d 858 (Tex. 1973) and Pat H. Foley & Co. v.
Wyatt, 442 S.W.2d 904 (Tex. Civ. App.—Houston [14th Dist.] 1969,
writ ref’d n.r.e.). Plaintiff’s reliance is misplaced. Stuart and
Foley are breach of contract cases. Billings is an intentional
tort, invasion of privacy case, not a negligence case.
Plaintiff has not cited nor has our research revealed a case
where a series of transactions created a duty on the part of a
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vendor of products or services to enter into future transactions.
In fact, professionals do not owe a duty to exercise their
particular talents, knowledge, and skill on behalf of every person
they encounter in the course of the day. St. John v. Pope, 901
S.W.2d 420 (Tex. 1995)(physician who declines creation of
physician-patient relationship not liable for medical malpractice).
Plaintiff’s sales history with the Albertsons pharmacy does not
create a duty to fill future prescriptions.
Plaintiff also argues that Albertsons assumed a duty to act
once the pharmacist told Plaintiff’s doctor that he was
uncomfortable filling the prescription and when the pharmacist
submitted Plaintiff’s name to an oral network where pharmacists
alert each other to consumers who falsify prescriptions. Texas
imposes a duty to act when a party undertakes an affirmative course
of action for the benefit of another or negligently creates a
situation that may injure others. Colonial Savings Ass’n v.
Taylor, 544 S.W.2d 116 (Tex. 1976); Buchanan v. Rose, 159 S.W.2d
109 (Tex. 1942).
The pharmacist’s refusal was not an affirmative act and the
communication of the refusal is not an act which creates a duty.
Similarly, the submission of Plaintiff’s name to the network after
the pharmacist refused to fill the prescription does not give rise
to a duty to fill the prescription. The submission was not an act
for the benefit of Plaintiff and it did not create a dangerous
situation that could be prevented by filling the prescription.
AFFIRMED.
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