Osborn v. Kelley
| Decision Date | 02 March 1978 |
| Citation | 402 N.Y.S.2d 463,61 A.D.2d 367 |
| Parties | , 23 UCC Rep.Serv. 871 Dorothy M. OSBORN, as Executrix of the Estate of Nelson S. Osborn, Deceased, et al., Appellants, v. John Kelley et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Julien & Schlesinger, P. C., New York City (Alfred S. Julien, New York City, of counsel), for appellants.
Carter, Conboy, Bardwell, Case & Blackmore, Albany (James S. Carter, Albany, of counsel), for John Kelley and others, respondents.
Before SWEENEY, J. P., and KANE, STALEY, LARKIN and HERLIHY, JJ.
SWEENEY, Justice Presiding.
In this action against three physicians, a hospital and a drug manufacturer, eight causes of action were alleged. The individual defendants moved to dismiss all eight causes of action. Special Term granted the motion as to the "Fifth", "Seventh" and "Eighth" causes of action and plaintiffs appeal.
The "Fifth" cause of action is based on breach of warranty and is premised on the alleged sale by the three physicians of an unsafe drug to plaintiffs' decedent. We are of the view that notwithstanding the use of the term "sold", the complaint, in essence, alleges that the drug was furnished to the decedent by the physicians as an incidental part of the services rendered by them in the course of the decedent's medical treatment. Under such circumstances, the use of the term "sold" is not determinative (Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792). The sections of the Uniform Commercial Code creating express and implied warranties speak in terms of a sale and the seller (Uniform Commercial Code, §§ 2-313, 2-314, 2-315). Having determined that the complaint describes the furnishing of the drug to the decedent as an incidental feature of the services rendered by the physicians, we find there had been no sale within the meaning of the Uniform Commercial Code so as to give rise to any express or implied warranties (Perlmutter v. Beth David Hosp., supra; Schenectady Steel Co. v. Trimpoli Gen. Constr. Co., 43 A.D.2d 234, 350 N.Y.S.2d 920; affd. on other grounds 34 N.Y.2d 939, 359 N.Y.S.2d 560, 316 N.E.2d 875). Consequently, the motion to dismiss plaintiffs' "Fifth" cause of action, based on breach of warranty, was properly granted.
Plaintiffs' "Seventh" cause of action is based on strict products liability. Liability pursuant to this doctrine has recently been expanded by this court to retailers (Mead v. Warner Pruyn Div., Finch Pruyn Sales, 57 A.D.2d 340, 394 N.Y.S.2d 483). Physicians, however, are in a unique position. In Perlmutter v. Beth David Hosp., supra the court, while concerned with the liability of a hospital, stated:
The art of healing frequently calls for a balancing of risks and dangers to a patient. Consequently, if injury results from the course adopted, where no negligence or fault is present, liability should not be imposed upon the institution or agency actually seeking to save or otherwise assist the patient (308 N.Y. at 107, 123 N.E.2d at 795).
We believe this rationale applies equally to physicians and, therefore, conclude that liability without fault should not be imposed upon a physician who prescribes a drug in the course of medical treatment by applying the doctrine of strict products liability merely because the drug produced unfortunate results (Carmichael v. Reitz, 17 Cal.App.3d 958, 95 Cal.Rptr. 381). Special Term, in our opinion, properly granted the motion to dismiss the "Seventh" cause of action.
In her "Eighth" cause of action plaintiff Dorothy Osborn seeks recovery in her individual capacity for loss of decedent's services, society, companionship, consortium and support and for the money she expended for his funeral services. In considering the sufficiency of this cause of action, the complaint must be...
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...555 n.10, 414 N.Y.S.2d 171 (2d Dep't 1979), aff'd, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980) and Osborn v. Kelley, 61 A.D.2d 367, 402 N.Y.S.2d 463 (3d Dep't 1978) (forbidding recovery). The Court of Appeals has since settled the matter in Liff, supra, in an emphatic opinion wh......
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...v. Balaban, 11 App.Div. 164, 165, 42 N.Y.S. 654, supra). In this regard, we adopt the reasoning set forth in Osborn v. Kelley, 61 A.D.2d 367, 370, 402 N.Y.S.2d 463, supra 'that insofar as plaintiff is attempting to recover for loss of consortium for the period prior to decedent's death, a c......
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...v. Balaban, 11 App.Div. 164, 165, 42 N.Y.S. 654, supra.) In this regard, we adopt the reasoning set forth in Osborn v. Kelley (61 A.D.2d 367, 370, 402 N.Y.S.2d 463, supra ) "that insofar as plaintiff is attempting to recover for loss of consortium for the period prior to decedent's death, a......
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