Dorney v. Harris, Civ. A. No. 79-K-980.
| Decision Date | 15 January 1980 |
| Docket Number | Civ. A. No. 79-K-980. |
| Citation | 482 F. Supp. 323 |
| Parties | Nancy DORNEY, Plaintiff, v. David W. HARRIS, M.D., Defendant. |
| Court | U.S. District Court — District of Colorado |
George A. Hinshaw, Aurora, Colo., for plaintiff.
Dale S. Carpenter, III, Johnson & Mahoney, Denver, Colo., for defendant.
This complaint alleges that defendant, David W. Harris, M.D., negligently performed a surgical procedure known as a Frankenhauser nerve block. In her third claim for relief, plaintiff alleges that Dr. Harris' conduct constituted a breach of implied and express warranties to perform proper care for plaintiff's dysmenorrhea condition. Plaintiff's fourth claim for relief requests this court to award punitive damages because defendant, in treating plaintiff, was guilty of wanton disregard of the possible effects of the treatment on plaintiff's well being. This case is now before the court upon defendant's motion to dismiss the third and fourth claims of the complaint.
In moving this court to dismiss plaintiff's third claim for relief, defendant asserts that there is no basis in law for an action against a professional for breach of implied warranty in the performance of professional duties when there is no sale of goods. Defendant is correct. Colorado observes the distinction between sales and services. A sale is an essential element to impose liability under warranties. Belle Bonfils Memorial Blood Bank v. Hansen, Colo., 579 P.2d 1158 (1978); See, Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975).
Carmichael v. Reitz, 17 Cal.App.3d 958, 95 Cal.Rptr. 381, 393 (1971). Thus those who provide medical care provide services. Ordinarily, they cannot be held liable for breach of implied warranties. Belle Bonfils Memorial Blood Bank v. Hansen, supra; Carmichael v. Reitz, supra; Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954).
Plaintiff's third claim for relief also claims that defendant's actions constituted breach of his express guarantee and warranty to perform the proper care and treatment of plaintiff. There can be a special contract between a physician and patient guaranteeing successful results from surgery if such guarantee or express warranty is supported by consideration. Bailey v. Harmon, 74 Colo. 390, 22 P. 393 (1924); Herrera v. Roessing, Colo.App., 533 P.2d 60 (1974). (Not selected for official publication.) Here plaintiff's complaint fails to set forth facts alleging the existence of a guarantee or the existence of consideration to support it. Accordingly, plaintiff's third claim for relief is dismissed.
Defendant contends that plaintiff's claim for punitive damages is barred by the one year statute of limitation in C.R.S. § 13-80-104 which reads as follows:
All actions and suits for any penalty or forfeiture of any penal statute, brought by this state or any person to whom the penalty or forfeiture is given, in whole or in part, shall be commenced within one year after the offense is committed and not after that time.
It is clear that this action was not commenced within one year of the offense allegedly committed by defendant. Plaintiff's original complaint was filed on July 26, 1979; paragraph 7 of the complaint states that the operation occurred on March 2, 1978.
However the applicability of C.R.S. XX-XX-XXX also depends on whether the action involved is one brought to enforce a penalty or forfeiture. Carlson v. McCoy, Colo., 566 P.2d 1073 (1977). Defendant's belief that plaintiff's claim for punitive damages is premised upon C.R.S. XX-XX-XXX which provides for an action or a suit for a penalty is erroneous. C.R.S. XX-XX-XXX provides:
In all civil actions in which damages are assessed by a jury for a wrong done to the person, or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages.
It is clear that C.R.S. XX-XX-XXX does nothing more than authorize an award of exemplary or punitive...
To continue reading
Request your trial
-
Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc.
...Co., 74-F-1163 (D.Colo., August 17, 1976, Finesilver, J.). Cases holding that Sec. 13-80-104 does not apply include Dorney v. Harris, 482 F.Supp. 323 (D.Colo., Kane, J.); Griswold v. Lange Co., C 4681 (D.Colo., April 18, 1977, Arraj, J.); Alexander v. Graco, Inc., 75-W-104 (D.Colo., January......
-
In re Keyworth
...is not an independent cause of action, but is dependent upon the underlying claim for actual or compensatory damages. Dorney v. Harris, 482 F.Supp. 323 (D.Colo.1980). The purpose of the Bankruptcy Code, and the Colorado exemption statutes, are to provide the debtor with a "fresh start". Tha......
-
Burns v. Wannamaker, 0155
...separate from the consideration paid for the practitioner's normal undertaking to use due care and skill. See, e.g., Dorney v. Harris, 482 F.Supp. 323, 324 (D.Colo.1980); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Rogala v. Silva, 16 Ill.App.3d 63, 305 N.E.2d 571, 573 (1973); 61 Am.Jur.2d ......
-
Scarzella v. Saxon
...jurisdictions in fact have required proof of separate consideration in cases involving medical warranties. See, e. g., Dorney v. Harris, 482 F.Supp. 323, 324 (D.Colo.1980); Coleman v. Garrison, supra at 11. Other jurisdictions require proof of separate consideration only where the alleged w......