Opinion
No. CV 02-0815389
April 22, 2003
MEMORANDUM OF DECISION ON MOTION TO STRIKE (116)
The issue in plaintiff's Motion to Strike is whether the special defenses of contributory negligence as to the negligence count and as to the recklessness count can stand. The instant case involves a pharmacist who dispensed the wrong medication. He gave the plaintiff Prozac instead of Prilosec. The pharmacist used the container containing the Prozac and affixed to that container the Walgreen label. The word "Prozac" on the container was not covered by the Walgreen label. The Prozac medication itself had the name Prozac on it.
The case relied on by the plaintiff, Tombari v. Conners, 85 Conn. 231 (1912), focuses on the duty of the pharmacist, because of his special training and knowledge, to exercise due care in the filling of prescriptions. In Tombari the prescription was in the form of a powder and the pharmacist misread an ingredient.
The plaintiff in Tombari spoke no English and in fact had an interpreter with her. The facts of Tombari would preclude fixing any responsibility on the plaintiff. Nor is there reference in Tombari to any duty of care on the part of the plaintiff as to her medication.
In the instant case there is labeling on the container and the medication itself and the complaint makes no reference to a language problem. This court holds that whether or not there is some duty on the part of the person who brings the prescription to determine whether the prescription has been filled correctly is a question of fact for the trier of fact to determine. Accordingly, the motion to strike the special defense of contributory negligence as to count one is denied. As to count two, the motion to strike the second special defense of contributory negligence is denied.
The third special defense of assumption of risk as to count two is stricken. Assumption of risk in negligence actions has been abolished. See Conn. Gen. Stat. § 52-572h (1). The case of Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791 (1983) is cited by the defendant for the proposition that the Supreme Court allows a defendant to allege assumption of risk as a special defense to both negligence and recklessness, when said defenses are grounded in a contributory negligence defense. In Wendland the court allowed an amendment to the special defense . . ." to make more specific the general allegation of comparative negligence in the original pleading and to conform that pleading to the testimony elicited at trial." at 797. This amendment does not raise the assumption of risk. The Tombari court stated to do so would be in violation of the comparative negligence statute (§ 52-572h (c)).
BY THE COURT
Hennessey, J.