McMichael v. American Red Cross

• Citation: 532 S.W.2d 7
• Parties: 18 UCC Rep.Serv. 281 Wilburn McMICHAEL, Appellant, v. AMERICAN RED CROSS, Appellee.
• Decision Date: 12 December 1975
• Court: United States State Supreme Court (Kentucky)

Page 7

532 S.W.2d 7

18 UCC Rep.Serv. 281

Wilburn McMICHAEL, Appellant, v. AMERICAN RED CROSS, Appellee.

Court of Appeals of Kentucky.

Dec. 12, 1975.

Joe G. Leibson, Louisville, for appellant.

Lively M. Wilson, Stites, McElwain & Fowler, Louisville, for appellee.

CULLEN, Commissioner.

This is an appeal from a judgment of the Jefferson Circuit Court dismissing the complaint of the plaintiff, Wilburn McMichael, in accordance with a directed verdict granted for the defendant, American Red Cross. The essential facts were stipulated by the parties. While hospitalized for severe butns at St. Anthony's Hospital, McMichael received whole blood and plasma from five different donors who had been screened by the best available manner by the American Red Cross, which furnished the blood in a sterile condition to the hospital for a service charge of $9.95 per unit. Forty-seven days later, which is within the normal incubation period, McMichael was diagnosed as having serum hepatitis.

McMichael brought the action to recover for the damages he suffered due to his encounter with this illness based on alternative theories of breach of implied warranty of merchantability and fitness under the Uniform Commercial Code, KRS 355.2--314 and 355.2--315, and of strict liability in tort as set out in section 402A of the American Law Institute's Restatement of Torts 2nd. Although he argues on this appeal that he also made a claim of ordinary negligence, the record shows that negligence was not pleaded.

In his opening statement counsel for McMichael stated the stipulated facts and in addition stated that he would have witnesses to prove causation. At the conclusion of the opening statement the court directed a verdict in favor of the defendant, relying upon KRS 139.125 which states 'the procurement, processing, distribution or use of whole blood, plasma, blood products, blood derivatives and other human tissues . . . is declared not to be a sale . . .' The court held that a sale is essential to a cause of action under strict liability or under an implied warranty, and under the broad public policy expressed in the statute the Red Cross cannot be held liable in this sort of situation.

McMichael contends on this appeal that KRS 139.125 is not applicable to the present controversy due to the fact that it is compiled in the chapter of the statutes relating to sales and use taxes and therefore applies only to tax liabilities. Failing that contention, McMichael argues that the statute is unconstitutional under Saylor v. Hall, Ky., 497 S.W.2d 218 (1973).

We do not find it necessary to discuss the applicability or constitutionality of the statute, or the questions of whether, without regard to the statute, the transfer of donor blood by Red Cross to a hospital for a service fee is a sale under the Uniform Commercial Code, KRS 355.2--314 and 355.2--315, so as to give rise to an implied warranty, and whether Red Cross is a seller under Section 402A of the Restatement of Torts 2nd so as to be subject to strict tort liability. Our conclusion is that even if the statute be inapplicable or unconstitutional, and even if the transfer be deemed a sale and Red Cross a seller, the directed verdict in the instant case was proper because under the stipulated facts there were no methods available at the time in question by which hepatitis virus could effectively be excluded from blood or the presence of the virus determined. Therefore, the blood involved in the instant case, to the extent it may have contained hepatitis virus, was unavoidably unsafe as discussed in Comment (k) under Section 402A of the Restatement and for that reason it was not unreasonably dangerous within the terms of Section 402A and it did not fail to be fit within the terms of the warranties provided for in the Uniform Commercial Code, KRS 355.2--314 and 355.2--315.

Comment (k) under Section 402A reads:

'Unavoidably unsafe products. There are some products which in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of the lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.'

Hereinafter noted are decisions from other jurisdictions on the question of unavoidable unsafeness under Comment (k), with their reasoning.

In Jackson v. Muhlenberg Hospital, 96 N.J.Super. 314, 232 A.2d 879 (1967), the court said:

'One underlying assumption in most if not all strict products liability cases is that the producer or an employee must have made a mistake in either the design, production or inspection of the product, or it would not have been defective and dangerous. In effect the courts have taken judicial notice of this and have relieved the injured party of the impossible burden of proving where the mistake occurred. Certainly a painstaking effort to avoid a defect does not excuse and should not excuse the error of oversight which has actually occurred. Where, as here, the harmful agent may be present without any error or oversight, the conclusive presumption of fault on the part of the producer is inapplicable. The producer is in no position to know or control the condition and there is no implied representation that the blood is free of the virus. *...