dissenting:
I concur in the majority’s determination that the prescribing physician has the primary duty to warn of the side effects of prescription drugs. As the majority correctly points out, count I of the plaintiff’s complaint against the doctor is not before this court. I also agree with the majority that the question of whether pharmacists have an affirmative duty to warn customers of the side effects of prescription drugs is not before us in this case.
The issue is whether the defendants negligently performed their voluntary undertaking and thereby caused Frye to suffer harm that was reasonably probable and foreseeable. I must respectfully dissent because the majority improperly restricts the scope of the voluntary undertaking theory of liability.
In Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 86, this court stated:
“It is axiomatic that every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.”
The duty to exercise ordinary care is a broad duty. In regard to the liability which may be incurred due to a breach of this duty, the Restatement (Second) of Torts states:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” Restatement (Second) of Torts §323 (1965).
Under this theory of liability, one who voluntarily undertakes a course of action may not perform the act negligently. One who is negligent in his or her undertaking will be held liable for foreseeable consequences of the act if another suffers harm because, inter alia, he or she relied upon the other’s undertaking. The majority is correct in noting that, under this theory of liability, the defendant’s duty of care is limited to the extent of his or her undertaking. However, by asserting that the extent of the defendants’ undertaking in this case was merely “the placing of the ‘drowsy eye’ label on Frye’s prescription container which warned that Fiorinal may cause drowsiness” (153 Ill. 2d at 33), the majority has improperly restricted the duty of the instant defendants by improperly restricting the scope of their particular undertaking.
This court has previously rejected such a narrow construction of a defendant’s voluntary undertaking. (See Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313.) In Cross, the Chicago Housing Authority (CHA) hired Wells Fargo Alarm Services, Inc., a security service, to provide guard services in one of its housing projects during the hours of 9 a.m. to 1 a.m. The-plaintiff in Cross was severely beaten in the building at 1:15 a.m. after the guards had left the premises. In his complaint against the CHA, the plaintiff alleged that the effect of the CHA’s voluntary undertaking to provide part-time security service was to substantially increase the incidence of crime in the project after 1 a.m., thereby increasing the personal danger to the tenants and guests therein. In Cross, the CHA cited Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, and argued that the extent of its undertaking was to hire the security service and, therefore, it could only be liable if it was negligent in hiring the Wells Fargo service. This court rejected the CHA’s argument, stating:
“But Pippin is not to be so narrowly read. Pippin held that the CHA’s voluntary undertaking to hire a protection agency required it to use reasonable care in hiring. The setting here is different, but the ground asserted for liability of the CHA is the same. A duty voluntarily assumed must be performed with due care or ‘such competence and skill as [one] possesses.’ [Citation.] The CHA undertook to provide part-time guard service at the project. In providing that service it was obligated to use reasonable care not to create increased dangers to persons lawfully on its property.” (Cross, 82 Ill. 2d at 317.)
The Cross court found that the plaintiff stated a cause of action against the CHA. Cross, 82 Ill. 2d at 317-18.
In Cross, this court made it clear that the extent of the CHA’s voluntary undertaking was not merely hiring the security agency. Rather, the Cross court determined that the extent of the CHA’s undertaking was to provide part-time security service. Under Cross, the majority in the case sub judice errs in determining that the extent of the defendants’ undertaking was merely to warn Frye of drowsiness. The majority’s construction of the defendants’ undertaking is much too narrow and significantly undermines the voluntary undertaking theory of liability. The Cross court found that the extent of the CHA’s undertaking was to provide part-time guard service and not merely the hiring of the service. Therefore, in the instant case, I would conclude that the extent of the defendants’ undertaking was to warn Frye of the dangerous side effects of Fiorinal, not merely to warn Frye of drowsiness. In the case at bar, the full extent of the defendants’ undertaking is clear from the record. The pharmacist gave testimony that she had other computer-generated warning labels as well as the “drowsy eye” label but she selectively chose not to include other labels on Frye’s prescription container.
Although the majority refers to Cross, it does not correctly apply the reasoning of that case. The majority reasons, in the case at bar, that the duty of the pharmacist ended with the placing of the drowsiness label on the medicine because she applied that label correctly. It overlooks the fact that the pharmacist also knew that drinking alcohol, while taking the medicine, could be fatal. The majority concludes that by not placing the alcohol label on the medicine, the pharmacist did not assume the risk of any harm that may visit a patient who indulges.
This reasoning is in direct conflict with the opinion of this court in Cross. The CHA provided private security guards until 1 a.m. This is analogous to the pharmacist placing the “drowsy eye” label on the medicine. When the security guards left at 1 a.m., the housing complex was more dangerous. The plaintiff in that case sustained injuries at 1:15 a.m., when the area was not protected. This court in Cross held the CHA to a different standard than the majority holds the defendants in this case. By doing so, the majority has reversed Cross sub silencio.
In my judgment, the placing of the “drowsy eye” label may have warned Frye of a relatively minor consequence of the medication. Failure to place a warning about the use of alcoholic beverages while taking the medication has far greater consequences. Yet, the pharmacist testified that she was aware of the consequences but did not place the alcohol label because it offended some people. According to the pleading, mixing of alcohol with Fiorinal was fatal to Frye.
Having undertaken to warn Frye of the dangerous side effects of Fiorinal, the defendants were obligated to do so in a reasonable manner. By placing only the “drowsy eye” label on Frye’s prescription container, a reasonable person could be misled into thinking that drowsiness is the only or the most severe side effect of Fiorinal. Summary judgment in this case is improper because material issues of fact exist with respect to whether the defendants’ undertaking increased the risk of harm to Frye (see Restatement (Second) of Torts §323(a) (1965)) or whether Frye died because he relied upon the defendants’ undertaking to warn of the dangerous side effects of the drug (see Restatement (Second) of Torts §323(b) (1965)). Because material questions of fact exist with respect to whether the defendants negligently performed their undertaking to warn Frye of the dangerous side effects of Fiorinal, the grant of summary judgment in favor of the defendants should be reversed and the cause should be remanded for resolution of these fact questions by the trier of fact.
For these reasons, I respectfully dissent.
JUSTICE FREEMAN joins in this dissent.