Fruge's Heirs v. Blood Services, 74-1615

Decision Date17 January 1975
Docket NumberNo. 74-1615,74-1615
Citation506 F.2d 841
Parties16 UCC Rep.Serv. 627 HEIRS OF Ude C. FRUGE et al., Plaintiffs-Appellants, v. BLOOD SERVICES and Aetna Casualty & Surety Company, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

J. Michael Morrow, J. Winston Ardoin, Eunice, La., Gary Boland, Baton Rouge, La., for plaintiffs-appellants.

Richard C. Meaux, Lafayette, La., for Blood Services and others.

Douglas L. Irish, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before TUTTLE, RONEY and GEE, Circuit Judges.

TUTTLE, Circuit Judge:

The question presented by this appeal is whether the plaintiffs-appellants, the children and sole heirs of Mrs. Ude C. Fruge, have a cause of action under Louisiana law against the supplier of blood used in a transfusion that allegedly caused their mother's death.

Mrs. Fruge, a 75-year-old widow, entered Moosa Memorial Hospital in Eunice, Louisiana, in March of 1970. On July 25, 1970, she was supplied with whole blood by the defendant-appellee for a transfusion in the course of treatment for hypoproteinemia and anemia. Some time later, Mrs. Fruge developed homologous serum jaundice, more commonly known as viral hepatitis, and required further hospitalization. She died on January 8, 1971.

Her heirs brought this wrongful death action against Blood Services, an Arizona non-profit corporation, in the United States District Court for the Western District of Louisiana. Aetna Casualty and Surety Company, the insurer of Blood Services, was joined as a defendant. The plaintiffs based their claim on four grounds: negligence, breach of warranty, breach of implied warranty and strict liability.

After substantial discovery by both sides, Blood Services moved for summary judgment, pursuant to Rule 56(b) Fed.R.Civ.P., on four issues:

'(1) Blood Services is a charitable organization and is, therefore, immune from liability and suit.

'(2) No recovery may be had on a theory of breach of warranty in a blood transfusion situation.

'(3) Plaintiffs may not recover on any strict liability theory.

'(4) No recovery may be had for death on a theory of breach of implied warranty.'

Several months later, Aetna also moved for summary judgment on grounds (2), (3) and (4) of the motion filed by Blood Services. 1

The trial court held under Louisiana law that Blood Services was a charity and thus immune from suit in tort, that Article 1764, subd. B of the Louisiana Civil Code barred liability of the defendants under the theories of both breach of 'any type' of warranty and strict liability in tort, and that it was unnecessary to decide whether Article 2315 of the Code would support a cause of action for breach of implied warranty in tort. 365 F.Supp. 1344 (W.D.La.1973). In conclusion, the trial court said: 'Accordingly, summary judgment is granted in favor of Blood Services dismissing all the plaintiff's demands. Likewise, all claims against Aetna other than in negligence are dismissed.' 365 F.Supp. at 1351.

The plaintiffs on appeal contend that the trial court was wrong in law on each issue: that the doctrine of charitable immunity has been abandoned by the Louisiana courts, that Article 1764, subd. B of the Louisiana Civil Code does not bar causes of action under theories of breach of warranty and strict liability, that if it does it violates the state constitution, and that Article 2315 of the Code supports an action based on breach of implied warranty.

We agree with the plaintiffs that the doctrine of charitable immunity is no longer law in Louisiana; indeed, the defendants conceded this during oral argument before us. Thus, the case must be remanded for further proceedings on the issue of negligence. We agree with the trial court's disposition of all other issues in the case, although we decide against the plaintiffs the one issue-- the availability of a cause of action for breach of implied warranty under Article 2315-- held open by the trial court.

Therefore, we affirm in part, reverse in part, and remand.

I. DOCTRINE OF CHARITABLE IMMUNITY

The trial court properly held at the time it granted summary judgment that Blood Services was a charity under Louisiana law, and thus that it was immune from suit in tort, citing Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969). After the trial court's judgment, the Supreme Court of Louisiana overruled Grant in Garlington v. Kingsley, 289 So.2d 88 (La.1974) and held therein that charitable institutions were not immune from suit in tort. The Louisiana Supreme Court subsequently held that Garlington v. Kingsley is effective retroactively. Jackson v. Doe, 296 So.2d 323 (La.1974); Connor v. Methodist Hospital, 297 So.2d 660 (La.1974).

During oral argument before this Court, the defendants admitted that the doctrine of charitable immunity no longer protected them from suit in negligence. However, they urged that there is an independent ground for affirming the result below as there is no evidence in the record of any negligence by defendant Blood Services. This argument is without merit, and none of the cases cited by the defendants in support of the argument are on point. 2

There indeed is no evidence in the record of any negligence by Blood Services, because there was no need for the plaintiffs to present any in the posture in which the motion for summary judgment arose. The motion by Blood Services for summary judgment on issue (1) was solely on the question of charitable immunity and not on negligence vel non. As such, the plaintiffs were never called upon to produce any Rule 56(c) materials-- such as depositions, answers to interrogatories and affidavits-- that would show that the defendants were negligent in fact. We cannot now say that there is no genuine material issue of fact with respect to negligence by the defendants, because the question was never raised in the trial court. Where summary judgment is granted on one issue, an appellate court may not extend that judgment to another issue under the guise of affirming the 'result below' when the effect is to preclude the losing party from 'disput(ing) facts material to that claim.' Fountain v. Filson, 336 U.S. 681, 683, 69 S.Ct. 754, 756, 93 L.Ed. 971 (1949).

In sum, now that it is clear that the defendants are not immune from suit in tort, the case must be remanded for further proceedings on the issue of negligence.

The only question now is whether the plaintiffs-appellants have any cause of action other than negligence.

We conclude that they do not.

II. OTHER CAUSES OF ACTION

This is one of those extremely rare situations where the precise legal question before a court has been clearly foreseen by the legislature and unequivocally resolved. Six years ago, the Louisiana legislature-- like many others 3 -- amended its laws to extinguish all causes of action except negligence against blood banks and hospitals supplying whole blood and its components. The reason for this unusual action was simple, and apparently cogent to the legislature: the obvious and overwhelming need for blood and blood products to be used in transfusions and in surgery was barely met by available supplies, and suppliers were threatened by crippling legal liability for a very small but-- according to the majority of medical authorities-- hard to avoid risk 4 that their blood carried undetectable viral hepatitis. If competent and carefully operated blood banks were to survive, the state legislature believed, they required legislative protection. 5

The form of protection developed by the State of Louisiana was an amendment to the Civil Code provision that defined the subjects of contract and created means for limiting or renouncing implied warranties in contracts of sale. Article 1764 of the Civil Code, as amended by Acts of 1968, No. 301, 1, provides in full:

Art. 1764. Contracts; subject, motive, elements determining nature, and exceptions to implied warranty provisions. A. All things that are not forbidden by law, may legally become the subject of, or the motive for contracts; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider:

1. That which is the essence of the contract, for the want whereof there is either no contract at all, or a contract of another description. Thus a price is essential to the contract of sale; if there be none, it is either no contract, or if the consideration be other property, it is an exchange.

2. Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description; of this nature is warranty, which is implied in every sale, but which may be modified or renounced, without changing the character of the contract or destroying its effect.

3. Accidental stipulations, which belong neither to the essence nor the nature of the contract but depend solely for the payment of a loan, the given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations. What belongs to the essence and to the nature of each particular description of contract, is determined by the law defining such contracts; accidental stipulations depend on the will of the parties, regulated by the general rules applying to all contracts. B. Notwithstanding the provisions of Section A.2, of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be...

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