Scarlett v. Rose Care, Inc.

Scarlett DeHART v. WAL-MART STORES, INC.

96-546                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 27, 1997


1.   Negligence -- duty owed to plaintiff alleging negligence one
     of law. -- The question of the duty, if any, owed a plaintiff
     alleging negligence is always one of law and never one for the
     jury. 

2.   Negligence -- plaintiff failed to show that duty was owed --
     trial court's decision affirmed. -- Where there was no attempt
     to argue that the trial court erred in holding that appellee
     had no duty to refrain from reporting the incident as it did,
     the decision of the trial court was affirmed; the law of
     negligence requires as an essential element that the plaintiff
     show that a duty was owed; appellant gave the supreme court no
     basis to hold that the trial court erred in his decision with
     respect to the duty owed by appellee to appellant.

3.   Appeal & error -- argument raised for first time on appeal --
     argument not considered. -- Appellant's contention, raised for
     the first time on appeal, that the trial court should not have
     granted the motion for summary judgment while discovery was
     outstanding, was not considered by the supreme court; when an
     argument has not been presented to the trial court it will not
     be considered on appeal as a basis for reversal. 

     Appeal from Pope Circuit Court; John S. Patterson, Judge;
affirmed.
     Young & Finley, by:  Richard H. Young, for appellant.
     Williams & Anderson, by:  Steven Quattlebaum and Thomas G.
Williams, for appellee.

     David Newbern, Justice.
     Scarlett DeHart sued Wal-Mart Stores, Inc., alleging that
Blair O'Neal, a Wal-Mart pharmacist, negligently reported to police
officials that Ms. DeHart might be attempting to obtain a
controlled substance by using a fraudulently obtained prescription. 
Wal-Mart's motion for summary judgment was granted, and Ms. DeHart
has appealed on the ground that there are remaining genuine issues
of fact.  Ark. R. Civ. P. 56(c).  She also contends the judgment
was issued prematurely because discovery had not been completed. 
We dismiss the latter point because it was not raised before the
Trial Court.  We decline to reverse on the former point because we
have been given no authority or convincing argument in support of
holding that there is a cause of action for negligent reporting or
prosecution of suspected crimes.
     According to Ms. O'Neal, a woman telephoned the pharmacy and
said, "I'd like to call in a prescription for DeHart."  The caller
said the prescription was for Scarlett DeHart for twenty-four
Darvocet, gave her the directions for usage, then said "Doctor
Lipsmeyer" and hung up.
     Ms. O'Neal explained that she became suspicious because the
directions, though presented in medical vernacular, were given
incorrectly.  She called Dr. Lipsmeyer's office and was told that
Ms. DeHart was not a patient of the Doctor, and that the
prescription call was not made by anyone in the Doctor's office.
     Ms. O'Neal called the Drug Enforcement Agency and reported
what had occurred.  She was told to stall until they arrived.  When
Ms. DeHart entered the pharmacy and asked if her prescription was
ready, she was asked to wait.  Officers arrived, and Ms. DeHart was
arrested and charged with fraudulent attempt to procure
prescription drugs.  
     Ms. DeHart alleged she spent twenty-eight days in jail and
lost her job as a result of the incident.  Ms. DeHart had
apparently been convicted previously of uttering bad checks in
several counties and was on parole.  Attached to Wal-Mart's motion
for summary judgment was the record of a parole-revocation hearing
at which testimony concerning the matter of the prescription was
taken from the parties and witnesses involved.  The evidence was,
to say the least, conflicting.  It was clear, however, that Ms.
O'Neal had not checked the pharmacy computer prior to calling Dr.
Lipsmeyer's office.  Had she done so, she said, it would have shown
authorized refills.  It was also clear that Ms. DeHart had been a
patient of Dr. Lipsmeyer who had prescribed Darvocet for her, but
that he could not recall whether any refills were ordered.
     Also attached to the motion for summary judgment was the
affidavit of Robin Wright, a licensed pharmacist.  According to the
affidavit, Ms. O'Neal, by contacting the DEA, acted in accordance
with the standard operating procedure for licensed pharmacists.
     In granting the motion for summary judgment, the Trial Court
stated there had been no demonstration of a "breach of duty."  We
echo that determination here.

                      1.  Summary judgment
     The question of the duty, if any, owed a plaintiff alleging
negligence is always one of law and never one for the jury.  Lawhon
Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994); 
Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).  Ms. DeHart's argument must rest on a cause of action for
negligent prosecution or negligent reporting.  Stated differently,
there is no need for us to get to the issue whether there are facts
to be determined unless it is clear that, as a legal proposition,
Wal-Mart owed a duty to Ms. DeHart that could have been violated in
this case.
     In the argument portion of her brief, Ms. DeHart cites three
cases to support her contention that summary judgment should not
have been granted.  The first case, Miller v. Nuckolls, 77 Ark. 64
(1905), involved an action "for slander and libel," and it is cited
for the proposition that every citizen has the duty to aid the
detection of crime.  The second case, St. Louis Sw. Ry. Co. v.
Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967), is a railroad
crossing accident case, cited for the proposition that compliance
with safety regulations does not completely discharge one's duty to
act reasonably.  The third case, Lee v. John Doe, 274 Ark. 467, 626 S.W.2d 353 (1981), is cited for its general language concerning the
proper standards for the granting of a summary judgment.  None of
the cases cited touches upon the Trial Court's determination that
Wal-Mart owed to Ms. DeHart no duty which was allegedly violated.
     A Texas Court of Appeals has, in a scholarly opinion,
illuminated the issue Ms. DeHart has not tackled.  In Smith v.
Sneed, 938 S.W.2d 181 (Tex. Ct. App. -- 1997), that Court held, in
essence, that there is no cause of action for negligently reporting
activity thought to be criminal in nature.  The question presented
concerns the balance between the need to refrain from discouraging
citizens from reporting crimes and the need to prevent persons from
doing so in a manner that unnecessarily harms the persons reported. 
As explained by the Texas Court, the requirement of a showing of
malice in malicious prosecution actions is a result of the law's
attempt to provide the properly placed fulcrum.
     We take no position on the issue in this case, as there has
been no attempt to argue that the Trial Court erred in holding that
Wal-Mart had no duty to refrain from reporting the incident as it
did.  The law of negligence requires as an essential element that
the plaintiff show that a duty was owed.  Young v. Paxton, 316 Ark.
655, 873 S.W.2d 546 (1994);  Earnest v. Joe Works Chevrolet, Inc.,
295 Ark. 90, 746 S.W.2d 554 (1988).  Although there may be
unresolved factual disputes about what happened between Ms. DeHart
and Wal-Mart, we affirm the decision because Ms. DeHart has given
us no basis to hold that the Trial Court erred in his decision with
respect to the duty owed by Wal-Mart to Ms. DeHart.

                          2.  Discovery
     Ms. DeHart contends, for the first time on appeal, that the
Trial Court should not have granted the motion for summary judgment
while discovery was outstanding.  When an argument has not been
presented to the Trial Court we will not consider it on appeal as
a basis for reversal.  Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996);  Carr v. General Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995).
     Affirmed.
     Corbin, J., not participating.
     Hani Hashem, Special Justice, joins in this opinion.