#24436-a-JKM 

2007 SD 116 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

JEANNA SCHAFER, as Guardian Ad 

Litem of T.F. and T.F., Plaintiff and Appellant, 

 v. 

SHOPKO STORES, INC., a foreign 

Corporation, GARRY FREIER, and 

AVRIEL HERTZ, Defendants and Appellees. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

DAVISON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE EUGENE E. DOBBERPUHL 

Judge 

* * * * 

PATRICK T. PARDY of 

Mumford, Protsch and Pardy 

Howard, South Dakota 

GARY W. SCHUMACHER of 

Wilkinson & Wilkinson Attorneys for plaintiff 

DeSmet, South Dakota and appellant. 

EDWIN E. EVANS 

MITCHELL A. PETERSON of 

Davenport, Evans, Hurwitz 

 & Smith LLP Attorneys for defendants 

Sioux Falls, South Dakota and appellees. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON OCTOBER 1, 2007 

 OPINION FILED 11/07/07 
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MEIERHENRY, Justice 

[¶1.] Jeanna Schafer, as Guardian Ad Litem of T.F. and T.F. (Schafer), filed 

an action against Shopko Stores, Inc. (Shopko) for damages under SDCL 34-20C, 

the Drug Dealer Liability Act (DDLA). Shopko filled two valid prescriptions for 

morphine sulphate, a Schedule II controlled drug, for Tully Knigge (Knigge). 

Knigge sent Shane Feistner (Feistner) to pick up his prescriptions. Shopko gave the 

filled prescriptions to Feistner. Feistner consumed some of the morphine pills and 

died of a drug overdose. Schafer sued Shopko claiming that Shopko was liable 

under the provisions of the DDLA. The circuit court granted summary judgment in 

favor of Shopko. Schafer appeals. We affirm. 

FACTS 

[¶2.] Knigge is a person with disabilities and chronic pain, who is often 

unable to travel to have his prescriptions filled. On July 22, 2004, Knigge had 

Feistner fill two morphine sulphate prescriptions. Knigge gave Feistner his 

prescriptions and a signed blank check payable to Shopko. Knigge frequently had 

his prescriptions filled at Shopko by others. Shopko filled the prescriptions 

according to the prescription order. 

[¶3.] Feistner, with Knigge’s knowledge and consent, consumed some of 

Knigge’s morphine before and after delivering the prescriptions to Knigge. Feistner 

also consumed a potentially toxic amount of alprazolam (Xanax) either on July 22nd 

or in the early morning hours of July 23rd. Feistner did not obtain the Xanax from 

Knigge. Feistner died as a result of asphyxiation from aspirating the contents of his 

stomach on July 23rd. 
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[¶4.] Schafer filed an action alleging that Shopko was liable for damages 

under SDCL 34-20C-2, the DDLA. Schafer claimed that Shopko had “participat[ed] 

in the illegal drug market” by dispensing the controlled drug to one other than 

Knigge or a member of his household. Schafer relied on the definition of “ultimate 

user” as used in SDCL 22-42-1 and 34-20B-1(21). “Ultimate user” as used in the 

statutes is defined as “a person who lawfully possesses a controlled drug or 

substance for personal use or for the use of a member of that person’s household . . . 

.” Schafer argued that in dispensing the prescription to Feistner, Shopko did not 

dispense the drug to the “ultimate user,” – Knigge or a member of his household – 

and was thus liable under the DDLA. Shopko, on the other hand, pointed to SDCL 

36-11-2 (7), which allows a pharmacist to dispense a prescription drug order “to a 

patient or a patient’s agent[.]” Shopko argued that since the pharmacist legally 

dispensed the drug to Feistner who was Knigge’s agent, it could not be liable under 

the DDLA. Schafer claims that the circuit court erred by granting summary 

judgment in favor of Shopko. 

 STANDARD OF REVIEW 

[¶5.] Summary judgment is authorized “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” SDCL 15-6-56(c)(3). 

“[S]ummary judgment will only be affirmed if there are no genuine issues of 

material fact and the legal questions have been decided correctly . . . No deference 

is afforded the circuit court’s conclusions of law.” King v. Landguth, 2007 SD 2, ¶8, 
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726 NW2d 603, 607 (citations omitted). “Questions of law such as statutory 

interpretation are reviewed by the Court de novo.” Martinmaas v. Englemann, 

2000 SD 85, ¶49, 612 NW2d 600, 611. 

ANALYSIS 

[¶6.] The issue before this Court is whether a pharmacy that dispenses a 

validly prescribed Schedule II drug to an authorized agent of a user can be held 

liable under the DDLA for the agent’s consumption of the drug. Based on the 

language of the relevant statutes, we conclude that the Legislature did not intend 

for a pharmacist to be held liable under these circumstances. 

[¶7.] We have said that legislative “intent must be determined from the 

statute as a whole, as well as enactments relating to the same subject.” Moss v. 

Guttormson, 1996 SD 76, ¶10, 551 NW2d 14, 17 (citing US West Communications, 

Inc. v. Public Util. Comm’n, 505 NW2d 115, 122-23 (SD 1993) (citations omitted)). 

“There are instances when it is necessary to look beyond the express language of a 

statute in determining legislative intent. Most notably . . . if confining ourselves to 

the express language would produce an absurd result.” MGA Ins. Co., Inc. v. 

Goodsell, 2005 SD 118, ¶17, 707 NW2d 483, 487 (citations omitted). “We presume 

that the Legislature intended no absurd or unreasonable result.” Moeller v. Weber, 

2004 SD 110, ¶46, 689 NW2d 1, 16. “[W]here statutes appear to conflict, it is our 

responsibility to give reasonable construction to both, and if possible, to give effect 

to all provisions under consideration, construing them together to make them 

‘harmonious and workable.’” Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶4, 543 

NW2d 787, 789 (citations omitted). “Furthermore, ‘[w]e should not adopt an 
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interpretation of a statute that renders the statute meaningless when the 

Legislature obviously passed it for a reason.” Zubke v. Melrose Tp, 2007 SD 43, 

¶14, 731 NW2d 918, 922. 

[¶8.] Under the DDLA, “[a]ny person who knowingly participates in the 

illegal drug market within this state is liable for civil damages . . .” SDCL 34-20C2.1 South Dakota adopted most of the provisions of the model DDLA, with only 

minor modifications.2 The purpose of the DDLA is to relax causation requirements 

to prove negligence because the common law effectively barred family members of 

drug users from filing suit against illegal drug dealers.3 See, e.g., SC Code of Laws 

44-54-20 (stating purpose of DDLA is to “establish a cause of action against drug 

dealers for damages”) and 44-54-40(B)(2) (in order to recover damages a person 

1. The DDLA provides a civil penalty for those harmed by illegal drug use under 

a market participant liability theory or a direct liability theory. SDCL 34-

20C et seq. South Dakota adopted the Model Drug Dealer Liability Act 

promulgated by the American Legislative Exchange Council. Arkansas, 

California, Colorado, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, 

Michigan, New Hampshire, Oklahoma, South Carolina and Utah have also 

adopted the model legislation. Ark Code Ann 16-124-101 – 112; Cal Health & 

Safety Code 11700 – 11717; Colo Rev Stat 13-21-601 to -614; Fla Stat Ann 

772.12; OCGA 51-1-46; Haw Rev Stat Ann 663D; 740 Ill Comp Stat Ann N 

57/1-25; Ind. Code Ann 34-1-70; LA Rev Stat Ann 9:2800.61 - .76; Mich Comp 

Laws Ann 691.1601 - .1619; NH Stat tit. XXX, ch. 318-C et seq.; Okla Stat 

Ann tit. 63, 2-421 to -435; SC Code of Laws 44-54-10 to -140; Utah Code Ann 

58-37e-1 – 14. 

 

2. Nicholas Reiter, Note: Dollars for Victims of a “Victimless” Crime: A Defense 

of the Drug Dealer Liability Acts, 15 J L & Pol’y 1329, 1338 n. 40-41 (2007) 

(“fifteen jurisdictions have enacted drug dealer liability statutes, each 

jurisdiction closely follows the provisions set forth in the Model [DDLA], 

which has been adopted by the American Legislative Exchange Council”). 

3. Joel W. Barr, Let the Drug Dealer Beware: Market-Share Liability in 

Michigan for the Injuries Caused by the Illegal Drug Market, 32 Val UL Rev 

139 (1997). 
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need only prove “a person knowingly participated in the marketing of illegal 

controlled substances at any time” during which a person used the same type of 

illegal drugs in the same geographical area). There is no evidence that the 

Legislature adopted the DDLA for any purpose other than to impose civil liability 

on illegal drug dealers. South Dakota DDLA provides third parties, and in limited 

circumstances drug users, harmed by the use of illegal drugs a civil remedy against 

those who knowingly distribute illegal drugs. SDCL 34-20C-5. 

[¶9.] In this case, for liability to attach under the DDLA, Schafer would have 

to show that the Shopko pharmacist “participate[d] in the illegal drug market.” 

SDCL 34-20C-5(1). Schafer relies on the definition of the term “participate in the 

illegal drug market,” which includes distribution of an illegal drug. SDCL 34-20C1(9). “Illegal drug” for purposes of the DDLA is defined as “a controlled drug or 

substance or marijuana whose distribution is a violation of state law.” SDCL 34-

20C-1(2). Schafer claims that the pharmacist violated state law by dispensing the 

controlled drug to Feistner rather than to Knigge or a member of Knigge’s 

household. To support this interpretation, Schafer relies on criminal statutes which 

Schafer claims limit a pharmacist to dispensing controlled drugs only to the 

“ultimate user.” SDCL 22-42-2.1. The criminal statute provides: 

No person other than a practitioner who is not a pharmacist, 

may dispense a controlled drug or substance included in 

Schedule II to an ultimate user without the written prescription 

of a practitioner who is not a pharmacist. No prescription for a 

Schedule II drug or substance shall be refilled. A violation of 

this statute is a Class 4 felony. 
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Id. “Ultimate user” is defined as “a person who lawfully possesses a controlled drug 

or substance for that person’s own use or for the use of a member of that person’s 

household . . .” SDCL 22-42-1(11); SDCL 34-20B-1(21). 

[¶10.] The fallacy of Schafer’s argument is her reliance on SDCL 22-42-2.1, 

which she claims requires a pharmacist to dispense controlled drugs only to the 

ultimate user or a member of his household. The plain meaning of the statutory 

language does not support her interpretation. In fact, the statutory provision 

expressly does not apply to pharmacists under these circumstances. The statute 

allows a licensed practitioner of the medical profession, who is not a pharmacist, to 

dispense drugs without a prescription to the ultimate user. 

[¶11.] On the other hand, the law specifically allows pharmacists to dispense 

drugs with a prescription to a patient’s agent. The statute defines “dispense” as 

follows: 

(7) “Dispense” or “Dispensing,” the preparation and delivery 

of a drug to a patient or a patient’s agent pursuant to a 

prescription drug order in a suitable container with 

appropriate labeling for subsequent administration to or 

use by a patient. . . . 

SDCL 36-11-2(7) (emphasis added). The law prohibits a pharmacist from 

distributing Schedule I and II controlled drugs or substances without a prescription. 

SDCL 34-20B-46. The law makes it a felony “for any person who is a [registered 

pharmacist] knowingly to distribute a controlled drug or substance classified in 

Schedules I or II, in the course of his legitimate business, except pursuant to an 

order form as required by this chapter.” SDCL 34-20B-46 (emphasis added). 

Additionally, pharmacists are prohibited from refilling Schedule II drug or 
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substance prescriptions. SDCL 22-42-2.1. However, no provision of the DDLA 

provides, as Schafer argues, that a pharmacist may only legally dispense a 

controlled drug to an “ultimate user” and not an agent. 

[¶12.] It is undisputed that Shopko had a valid prescription order form for 

the controlled drug that it filled and delivered to Knigge’s agent, Feistner. Clearly, 

Shopko met the requirements of the law. To interpret and apply the law as Schafer 

urges would make Shopko liable for a legal act. Such an interpretation is strained 

and would cause an absurd result. Because we hold that Shopko’s conduct did not 

fall within the purview of the DDLA, we do not reach Schafer’s other issues. 

[¶13.] Affirmed. 

[¶14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

ZINTER, Justices, concur.