[Cite as Perez-Herrera v. Now Clinic, 2023-Ohio-173.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
ANTONIO BONAFACIO PEREZ- C.A. No. 21AP0018 HERRERA
Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS NOW CLINIC, et al. COUNTY OF WAYNE, OHIO CASE No. 2019-CVC-A 000107 Appellees
DECISION AND JOURNAL ENTRY
Dated: January 23, 2023
TEODOSIO, Presiding Judge.
{¶1} Appellant, Antonio Bonafacio Perez-Herrera, appeals from a judgment of the
Wayne County Court of Common Pleas that granted summary judgment to Appellees, Walmart
Inc. and Wal-Mart Super Stores, East, L.P. (collectively “Walmart”), on his negligence claim,
concluding that Walmart owed no legal duty to Mr. Perez-Herrera. This Court reverses and
remands.
I.
{¶2} This appeal stems from a workplace injury that Mr. Perez-Herrera alleges resulted
in serious and permanent physical injuries because of the negligence of others in treating and/or
failing to properly treat his initial injury. Although this case involves complicated facts and
multiple defendants, the only defendant at issue in this appeal is Walmart, as the owner and
operator of a pharmacy in New Philadelphia, Ohio. This Court will focus on the evidence relevant
to the sole issue on appeal: whether Walmart owed a duty to Mr. Perez-Herrera. 2
{¶3} Moreover, because this appeal involves a summary judgment granted in favor of
defendant Walmart, this Court must construe the evidence in the record in favor of the nonmoving
party, Mr. Perez-Herrera. Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993).
“Even the inferences to be drawn from the underlying facts contained in the evidentiary materials,
such as affidavits and depositions, must be construed in a light most favorable to the party opposing
the motion.” Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner
v. Turner, 67 Ohio St.3d 337, 341 (1993).
{¶4} Mr. Perez-Herrera is an immigrant from Guatemala who is not fluent in English.
On Friday, December 22, 2017, he smashed the index finger on his left hand while on a break from
his job at Ohio Farms Packing Company, a slaughterhouse in Creston, Ohio. Because he and
several other employees were transported to and from work by his employer, his employer also
transported him to Now Clinic (“the clinic”), an urgent care clinic in Wooster, Ohio.
{¶5} A physician’s assistant treated Mr. Perez-Herrera by examining his finger and
stitching his severed fingernail down to the nail bed. The clinic also x-rayed his finger to determine
whether it was broken, but a radiologist did not read his x-ray until after he had left the clinic. The
physician’s assistant looked at the x-ray, however, and concluded that the finger was not broken.
The clinic released Mr. Perez-Herrera without a prescription for medication or instructions that he
would need to be treated with medication. He was transported by his employer back to Ohio
Farms, where he waited for his shift to end so he and other employees could be transported home.
{¶6} After Mr. Perez-Herrera left the clinic, a radiologist read his x-ray and determined
that his finger was broken. A nurse from the clinic later called in a prescription for an antibiotic,
Augmentin, to the Walmart pharmacy in New Philadelphia. Because Mr. Perez-Herrera used the
name and identification card of a man named Paul Lujan with his employer and when he went to 3
the clinic, the clinic prescribed the antibiotic in the name of Paul Lujan. The clinic had not gathered
contact information for Mr. Perez-Herrera (the man it knew as Paul Lujan), so it called Ohio Farms
and spoke to someone there before Mr. Perez-Herrera had gone home for the weekend. An Ohio
Farms employee who is fluent in English and Spanish informed him that he would have a
medication ready at Walmart the following day, a Saturday.
{¶7} It is not clear whether the clinic contacted Walmart that same day about the
prescription. According to the physician’s assistant, he directed a nurse that afternoon to call in
the prescription. The nurse later testified that, although she had no documentation that she had
done so, it would have been her regular practice to call Ohio Farms about where to send the
prescription and for the employer to notify its Spanish-speaking employee about it, and that she
would have called the pharmacy about the prescription the same day and left a message on their
voicemail.
{¶8} Mr. Perez-Herrera went to Walmart the following day, a Saturday, at approximately
10:00 a.m. He had been to the store before but had always paid with cash and had never had a
prescription filled there, so his contact information was not in Walmart’s computer database. He
went to the prescription pick-up window, showed an Ohio identification card in the name of Paul
Lujan, and stated that he was there to pick up some medicine. A Walmart employee checked the
computer and informed him that there was no record of a prescription for Paul Lujan. After he
asked why the medicine was not ready for him, the employee checked the computer again and
assured him that there was no prescription for him in their system. The Walmart employee did not
ask him for his contact information or suggest that he check back later, and he left the store.
{¶9} The evidence is not disputed that, more than one hour after Mr. Perez-Herrera left
Walmart on Saturday, the pharmacy received a voicemail message from the clinic about a 4
prescription for Augmentin for a man named Paul Lujan. Walmart filled the prescription late that
afternoon. Walmart had no contact information for the man, so it did not inform him that his
prescription was ready. Mr. Perez-Herrera did not return to Walmart and, consequently, did not
take the prescribed antibiotic.
{¶10} Over the next two days, Mr. Perez-Herrera’s physical condition worsened, but he
did not receive medical treatment until he was taken to the hospital on Monday, December 25,
2017. By that time, he had developed a severe infection that had spread through his body and led
to the amputation of both his legs below the knees and the partial amputation of several of his
fingers.
{¶11} Mr. Perez-Herrera later filed a medical malpractice action against numerous
persons and entities associated with the medical treatment he received after he sustained his initial
finger injury. Through an amended complaint, he added Walmart as a defendant. The negligence
claim against Walmart alleged that the pharmacy had breached its duty to him by failing to fill his
antibiotic prescription in a timely manner and, as a result, he “suffered a terrible infection which
spread to multiple parts of his body causing multiple amputations.” Through discovery, it became
apparent that Mr. Perez-Herrera had two theories for his negligence claim against Walmart: (1)
that Walmart received his prescription on Friday and was negligent for failing to timely fill it for
him before he arrived on Saturday, and (2) that, even if Walmart did not receive the prescription
until after he left the pharmacy, it breached its duty to him by failing to take further action including
gathering his contact information.
{¶12} Walmart later moved for summary judgment on Mr. Perez-Herrera’s claim against
it, asserting that it could not be liable to Mr. Perez-Herrera because it owed no duty to him. The 5
trial court agreed that Walmart owed no duty to Mr. Perez-Herrera and granted it summary
judgment. Mr. Perez-Herrera appeals and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO WALMART ON THE GROUND THAT ITS PHARMACY OWED NO DUTY TO [MR. PEREZ-HERRERA].
{¶13} Mr. Perez-Herrera’s assignment of error is that the trial court erred in granting
summary judgment to Walmart on his negligence claim against it. To establish his claim of
negligence, Mr. Perez-Herrera would be required to “establish (1) the existence of a legal duty
owed to [him], (2) the defendant’s breach of that duty, and (3) that an injury proximately resulted
from the defendant’s breach of duty.” Snay v. Burr, 167 Ohio St.3d 123, 2021-Ohio-4113, ¶ 13.
{¶14} Walmart moved for summary judgment, asserting that Mr. Perez-Herrera could not
prove that Walmart owed a duty to him. In addition to informing the court of the basis for its
motion, Walmart bore “the initial burden of * * * identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the [duty] element(s) of the
nonmoving party’s claims.” Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). This burden cannot
be satisfied by conclusory assertions but must “specifically point to some evidence of the type
listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence
to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the
motion for summary judgment must be denied.” Id.
{¶15} Pursuant to Civ.R. 56(C), summary judgment was appropriate if:
(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence 6
most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). This Court reviews an award
of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
{¶16} Walmart moved for, and was granted, summary judgment, based on its assertion
that it owed no duty to Mr. Perez-Herrera because, at the time he came to the pharmacy, it had not
yet received the Augmentin prescription for him, and, because he had never filled a prescription
at Walmart before, his contact information was not in their computer system. Walmart pointed to
evidence to support those factual assertions and argued, as a matter of law, that it owed no duty to
someone who had no prior relationship with the pharmacy and had no prescription record in its
computer system.
{¶17} As developed in his opposition to summary judgment and his brief on appeal, Mr.
Perez-Herrera asserted that Walmart was not entitled to summary judgment because: (1) he
presented evidence that the clinic may have sent the prescription to Walmart late Friday afternoon,
before he came to the pharmacy on Saturday morning; and that (2) even if Walmart did not receive
the prescription until after he left on Saturday, he presented evidence that Walmart owed him a
duty as a customer who came to the pharmacy, claiming that a prescription should be waiting for
him. We will address each of these arguments separately.
Receipt of the Prescription on Friday
{¶18} Although Walmart presented evidence that it had no prior relationship with Mr.
Perez-Herrera and did not receive the prescription before he came to the store on Saturday
morning, Mr. Perez-Herrera’s brief in opposition to summary judgment pointed to evidence that
Walmart may have received the prescription before he came to the pharmacy. 7
{¶19} Notably, Walmart did not dispute that, if it had received the prescription on Friday
afternoon, it had a legal duty to Mr. Perez-Herrera when he arrived at the pharmacy to pick up his
prescription on Saturday. This was the primary aspect of the negligence claim that Walmart
opposed on summary judgment. Walmart pointed to evidence that it had no prior relationship with
Mr. Perez-Herrera as a pharmacy customer and that it did not receive the Augmentin prescription
from the clinic until after he left the store. It pointed to the deposition testimony of Mr. Perez-
Herrera about what he was told at the pharmacy on Saturday morning and evidence that Walmart
received a voicemail about the prescription after he left the store. Walmart asserted that, because
it did not receive the prescription until after Mr. Perez-Herrera left the pharmacy, it owed no duty
to him.
{¶20} Mr. Perez-Herrera opposed this aspect of the summary judgment motion, however,
by presenting deposition testimony that the clinic might have phoned in the prescription on Friday
afternoon. According to the physician’s assistant who treated Mr. Perez-Herrera, he directed a
nurse at the clinic on Friday afternoon to call in the Augmentin prescription. The nurse testified
in her deposition that the clinic treats many employees from Ohio Farms who are immigrants and
do not speak English well. When calling in a prescription for one of Ohio Farm’s Spanish-
speaking employees, it is her practice to call Ohio Farms to determine what pharmacy to use, if it
is not on the patient’s chart (which it was not in this case), and to inform a contact person there
who speaks English and Spanish about the prescription. Mr. Perez-Herrera testified that he was
informed on Friday by the Ohio Farms contact person that a prescription would be ready at
Walmart on Saturday. Because he had been informed on Friday about the prescription, the nurse
agreed in her deposition testimony that she must have called Ohio Farms to inform the contact
person about his prescription. At the time of her deposition testimony, the nurse had no memory 8
or documentation about whether she had also called in the prescription to Walmart on Friday
afternoon, but she testified that it was her regular practice to call in the prescription to the pharmacy
right before or after she called Ohio Farms.
{¶21} Although this evidence may be arguably weaker than evidence that Walmart
received the prescription on Saturday, the weight or credibility of the evidence cannot be evaluated
on summary judgment but must be resolved in favor of the nonmoving party. Perez v. Scripps–
Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988). “When factual ambiguities exist,
inferences must still be resolved in favor of the nonmoving party.” Smathers v. Glass, Slip Opinion
2022-Ohio-4595, ¶ 32. Because Mr. Perez-Herrera presented evidence that the prescription may
have been called into Walmart on Friday, he demonstrated that there is a genuine issue of material
fact about whether Walmart received the prescription before he arrived to pick it up on Saturday,
December 23, 2017. Therefore, the trial court erred in granting summary judgment based on its
factual finding that Walmart did not receive the prescription until after Mr. Perez-Herrera left the
pharmacy.
Receipt of the Prescription on Saturday
{¶22} Mr. Perez-Herrera further asserted that, even if Walmart did not receive his
prescription until after he left the pharmacy on Saturday, it owed a duty to him when he came to
the pharmacy as a customer. Walmart’s summary judgment motion, however, did not point to any
evidence to challenge this aspect of the negligence claim.
{¶23} Instead, Walmart’s summary judgment motion and the decision of the trial court
framed the “duty” issue as follows: whether, after it determined that it had no record in its computer
database of a prescription for a man named Paul Lujan, Walmart owed Mr. Perez-Herrera a duty
to investigate further including asking him to provide his contact information. Framing the duty 9
issue in this manner, however, blurred the significant distinction between the existence of a duty
and the extent of the duty that Walmart owed to Mr. Perez-Herrera.
{¶24} The Ohio Supreme Court has explained the significant distinction between these
two concepts. Berdyck v. Shinde, 66 Ohio St.3d 573, 578 (1993), citing Prosser & Keeton on Torts
(5 Ed.1984) 356, Section 53. “The existence of a duty in a negligence action is
a question of law for the court to determine.” Mussivand v. David, 45 Ohio St.3d 314, 318 (1989).
A duty is “an obligation imposed by law on one person to act for the benefit of another person due
to the relationship between them.” Berdyck at 578.
{¶25} On the other hand, “[w]hat a defendant must do, or must not do, is a question of
the standard of conduct reasonably required to satisfy the defendant’s duty.” (Emphasis in
original.) Id. Although the existence of a duty is a question of law to be determined by the court,
the standard of conduct (or extent/scope of the duty) is generally determined based on the facts
and circumstances of a given case. See Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio
St.3d 257, 2015-Ohio-229, ¶ 27.
{¶26} Even if Walmart did not receive the prescription until after Mr. Perez-Herrera left
the pharmacy on Saturday, the legal “duty” question did not hinge on those underlying facts and
circumstances. The legal question of whether Walmart owed a duty to Mr. Perez-Herrera should
have focused on whether Walmart, as a dispensing pharmacy, owed any duty to Mr. Perez-Herrera,
a customer who came to the pharmacy to pick up a medication that he believed would be waiting
for him.
{¶27} The existence of an actor’s duty to another person usually arises from the
foreseeability of injury to someone in that person’s situation. Cromer at ¶ 25. “[T]here are also
certain legally recognized relationships between parties that can establish the existence of an 10
actor’s duty to another person.” Id. The relationship between a pharmacy and its customers is one
of those relationships.
{¶28} Even if Walmart did not receive Mr. Perez-Herrera’s prescription before he came
to the pharmacy, it did have a legally recognized relationship with him. Mr. Perez-Herrera was a
customer of the pharmacy. Although the trial court referred to him as a “potential” customer,
suggesting that he had no reason to come to the pharmacy counter, he came to Walmart’s pharmacy
because he believed that a medication would be waiting there for him. It is established in Ohio
law that pharmacists owe a duty to their customers.
{¶29} In fact, Walmart did not dispute that it owed some duty to Mr. Perez-Herrera, at
least to respond to his request for his medication and to search the computer database to determine
whether a medication had been prescribed for him. Moreover, in its brief supporting its motion
for summary judgment, Walmart essentially conceded that it owed some duty to Mr. Perez-Herrera
as a customer who attempted to pick up a prescription medication at its pharmacy. Quoting Moore
v. Covenant Care Ohio, Inc., 6th Dist. Lucas No. L-13-1259, 2014-Ohio-4113, ¶ 46, which relied
on Taugher v. Ling, 127 Ohio St. 142 (1933), paragraph two of the syllabus, Walmart recognized
that dispensing pharmacists “‘have a duty to reasonably perform their services and their duty is
owed to the public in general because of the inherent danger in their services.’” Consequently, the
legal question of whether Walmart owed a duty to Mr. Perez-Herrera as a customer at its pharmacy
was not actually in dispute. The trial court, therefore, erred by concluding that Walmart owed no
legal duty to Mr. Perez-Herrera and granting summary judgment to Walmart on that basis.
{¶30} The extent of its duty, or standard of care, that Walmart owed to Mr. Perez-Herrera,
however, is another question, which requires consideration of the facts and circumstances of this
case. See Cromer, 2015-Ohio-229, at ¶ 27. Mr. Perez-Herrera alleged that, even if Walmart did 11
not receive the prescription until after he left the pharmacy Saturday, it should have investigated
the matter further and asked him for his contact information.
{¶31} Through its summary judgment motion, however, Walmart did not directly
challenge the extent of its duty if it did not receive the prescription until after Mr. Perez-Herrera
left the store on Saturday. Because Walmart relied solely on case law from other jurisdictions
involving distinguishable facts, it did not meet its initial Dresher burden on the extent of its duty.
It relied on mere “conclusory assertion[s]” and did not “specifically point to some evidence of the
type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no
evidence to support the nonmoving party’s claims.” Dresher v. Burt, 75 Ohio St.3d at 293.
Walmart did not submit any expert testimony about the extent of Walmart’s duty, nor did it point
to any other evidence in the record about the extent of its duty if it did not receive the prescription
until after Mr. Perez-Herrera left the pharmacy. “If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be denied.” Id.
{¶32} Mr. Perez-Herrera supported his summary judgment opposition about the extent of
Walmart’s duty with the testimony of a pharmacy expert, Walmart’s internal rules and policies,
and the training and routine practices of Walmart’s employees about how to handle a customer
when it has no record of their prescription and they are not fluent in English. Because he had no
burden on summary judgment to do so, however, we need not detail that evidence. Because
Walmart failed to meet its initial Dresher burden, summary judgment as to the extent of Walmart’s
duty also should have been denied. Mr. Perez-Herrera’s assignment of error is sustained.
III. 12
{¶33} Mr. Perez-Herrera’s assignment of error is sustained. The judgment of the Wayne
County Court of Common Pleas is reversed and remanded for proceedings consistent with this
opinion.
Judgment reversed and the cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellees.
THOMAS A. TEODOSIO FOR THE COURT
CARR, J. SUTTON, J. CONCUR. 13
APPEARANCES:
KATHLEEN S. ST. JOHN and JONATHAN D. MESTER, Attorneys at Law, for Appellant.
KEVIN C. SCHIFERL and STEPHANIE V. MCGOWAN, Attorneys at Law, for Appellees.
MATTHEW C. BLICKENSDERFER, Attorney at Law, for Appellees.