Belle Bonfils Memorial Blood Bank v. Hansen, C-1392
Decision Date | 12 June 1978 |
Docket Number | No. C-1392,C-1392 |
Parties | BELLE BONFILS MEMORIAL BLOOD BANK, Petitioner, v. Muriel HANSEN and Carl Hansen, Respondents. |
Court | Colorado Supreme Court |
Hansen & Breit, John L. Breit, Denver, for petitioner.
Litvak & Karsh, Lawrence Litvak, Denver, Doris Besikof, Englewood, Beverly B. Netzorg, Denver, for respondents.
Upon the petition of Belle Bonfils Memorial Blood Bank, we granted certiorari to the Colorado Court of Appeals to review its decision in Colo.App., 570 P.2d 1309 (1977), and we now affirm.
The respondent, Muriel Hansen, while a patient at Mercy Hospital, received a blood transfusion consisting of several units of blood supplied by the petitioner blood bank. She filed this action against the blood bank, claiming she had contracted serum hepatitis as a result of the transfusion, and that the blood bank was liable by reason of strict liability and breach of implied warranties. The trial judge granted the blood bank's motion for summary judgment, basing its ruling upon St. Luke's Hospital v. Schmaltz, 188 Colo. 353, 534 P.2d 781 (1975). The court of appeals reversed holding that the opinion in Schmaltz did not apply here. 1
In Schmaltz the plaintiff claimed that she contracted serum hepatitis from blood used in a transfusion, which blood was furnished by the defendant hospital.
There a majority of this court adopted the rationale of Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954). Perlmutter established the sales/service distinction for blood transfusion cases. In Schmaltz the majority followed Perlmutter, and held that a hospital was not selling blood but rather was providing services. It was stated:
In the instant case the blood bank was selling blood, and was not supplying medical services as was held as to the hospital in Schmaltz. Rostocki v. Southwest Florida Blood Bank, Inc., 276 So.2d 475 (Fla.1973). While supplying blood may be "only incidental to the basic function of the hospital," it is not an incidental function for a blood bank. Rather than incidental, supplying blood for transfusions is the basic function of a blood bank. It is not a small part of an overall range of services provided, as in the case of a hospital.
This is a sales and not a services situation. As a "sale" is involved, we reach the question as to whether blood is a "product" such that § 402A of the Restatement (Second) of Torts may be applied. § 402A provides:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."
This court expressly approved § 402A in the case of Hiigel v. General Motors Corp., Colo., 544 P.2d 983 (1975). We now follow Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970) and hold that blood is a "product" for purposes of § 402A. 2 In Cunningham, supra, it was said:
See Rostocki v. Southwest Florida Blood Bank, Inc., supra. See generally Restatement (Section) of Torts § 402A, Comment e; Franklin, Tort Liability for Hepatitis: An Analysis and a Proposal, 24 Stan.L.Rev. 439 (1972).
The plaintiff's claims on strict liability and breach of implied warranties should not have been dismissed on the basis of Schmaltz.
Judgment affirmed.
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