Zichichi v. Middlesex Memorial Hosp.

• Decision Date: 14 July 1987
• Docket Number: No. 13086,13086
• Citation: 204 Conn. 399,528 A.2d 805
• Court: Connecticut Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 11,486 Lenny R. ZICHICHI v. MIDDLESEX MEMORIAL HOSPITAL.

Page 805

528 A.2d 805

204 Conn. 399, Prod.Liab.Rep. (CCH) P 11,486

Lenny R. ZICHICHI v. MIDDLESEX MEMORIAL HOSPITAL.

No. 13086.

Supreme Court of Connecticut.

Argued May 14, 1987.

Decided July 14, 1987.

Peter A. Kelly, New Haven, for appellant (plaintiff).

Michael P. Del Sole, New Haven, for appellee (defendant).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, HURLEY and LEWIS, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an appeal from the judgment of the trial court granting the defendant Middlesex Memorial Hospital's motion for summary judgment. The issue presented is whether a hospital that furnishes defective blood for transfusion to a patient, who is injured as a result thereof, can be liable under the doctrine of strict liability. This is a question of first impression in this court.

The underlying facts are not in dispute. On November 25, 1981, the plaintiff, Lenny R. Zichichi, instituted a product liability action against the defendant pursuant to General Statutes § 52-572m et seq. ¹ In his complaint, the plaintiff alleged that on August 23, 1980, he had been admitted to the defendant hospital for treatment of a ruptured spleen. The plaintiff also alleged that during the course of treatment for that injury, he received several units of whole blood by means of transfusions and that as a result of the transfusions, he contracted serum hepatitis. The plaintiff asserted that part of the normal business of the defendant is the sale and provision of whole blood for the purposes of transfusion to patients and that the blood he had received was defective and unreasonably dangerous. As a result, the plaintiff sought recovery for pain and suffering, loss of income and earning capacity and increased medical expenses.

On May 16, 1986, the defendant filed a motion for summary judgment. In support of its motion, the defendant argued that Connecticut's blood shield statute, General Statutes § 19a-280, ² bars the plaintiff's product liability action because that statute provides, inter alia, that "blood ... shall not be considered [a] commodit[y] subject to sale or barter, but shall be considered [a] medical [service]." The defendant argued that to maintain a cause of action under § 52-572m et seq., the plaintiff must allege, inter alia, a "sale of a product." The defendant asserted that because the transfer of blood is a service rather than a sale, it was entitled to judgment as a matter of law.

In opposition to the defendant's motion, the plaintiff argued that § 19a-280 does not apply to claims based on strict liability in tort. The plaintiff argued that § 19a-280 applies only to breach of warranty claims and therefore does not bar his suit.

In a decision dated July 17, 1986, the trial court, holding that under § 19a-280 the transfer of blood cannot be the basis of a product liability action as it is a "service" rather than "a sale of a product," granted the defendant's motion for summary judgment. On July 28, 1986, the plaintiff filed an appeal in the Appellate Court. On January 28, 1987, this court transferred the appeal to itself. Practice Book § 4023.

On appeal, the plaintiff claims that the trial court erred in granting the defendant's motion for summary judgment. Specifically, the plaintiff challenges the trial court's determination that § 19a-280 applies to bar a strict liability claim brought pursuant to § 52-572m et seq.

Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." ³ See also Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 451 n. 3, 477 A.2d 653 (1984); Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983). In this case, the defendant, for purposes of its motion for summary judgment, admitted the facts stated in the plaintiff's complaint. The only question before the trial court, therefore, was whether the defendant was "entitled to judgment as a matter of law."

The plaintiff attempted to plead a cause of action based on strict liability in tort, alleging in his complaint that a sale of blood occurred, that part of the defendant's business is selling blood, that the blood reached him without substantial change, that the blood was defective and unreasonably dangerous, and that it caused him injury. See 2 Restatement (Second), Torts § 402A. Because the facts which gave rise to the plaintiff's lawsuit occurred after October 1, 1979, the plaintiff's claim necessarily was brought as a product liability claim pursuant to § 52-572m et seq. Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986); see Savona v. General Motors Corporation, 640 F.Supp. 6 (D.Conn.1985); Collucci v. Sears, Roebuck & Co., 585 F.Supp. 529 (D.Conn.1984).

General Statutes § 52-572m(b) defines a product liability claim as including "all claims or actions brought for personal injury ... caused by the ... marketing ... of any product." Section 52-572n(a) allows such claims to be brought against "product sellers." Section 52-572m(a) defines "product seller," in pertinent part, as "any person or entity ... who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." To maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, "that ... the defendant was engaged in the business of selling the product ... [and] the defect existed at the time of the sale...." (Emphasis added.) Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980); Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn.App. 84, 86, 468 A.2d 292 (1983); 2 Restatement (Second), Torts § 402A. Once a particular transaction is labeled a "service," as opposed to a "sale" of a "product," it is outside the purview of our product liability statute. See General Statutes § 52-572m et seq; Coffee v. Cutter Biological, 809 F.2d 191, 193 (2d Cir.1987) (transfer of blood not a "sale" but a service; therefore, not within purview of § 52-572m et seq.); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-77 (2d Cir.1983) (navigational charts are products); Carbone v. Connecticut Light & Power Co., 40 Conn.Sup. 120, 121-22, 482 A.2d 722 (1984) (provision of electricity not a service but a "sale" of a "product" within the meaning of § 52-572m et seq.); see also L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F.Supp. 1425, 1431 (D.Conn.1986) (credit report not a "product" within the meaning of § 52-572m et seq.).

General Statutes § 52-572m et seq. does not define the term "product," nor has this court had the opportunity to determine whether the transfer of blood by a hospital to a patient is a "sale" of a "product." In construing this statute, it is therefore necessary and proper for this court to look to other statutes to determine whether the transfer of blood by a hospital to a patient is a "sale" of a "product." See Coffee v. Cutter Biological, supra at, 195; Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982).

General Statutes § 19a-280, which is entitled "Sale of blood, tissue and organs" and which is referred to as our "blood shield" statute, provides: "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, and the components, derivatives or fractions thereof, or tissue or organs shall not be considered commodities subject to sale or barter, but shall be considered as medical services." (Emphasis added.)

Section 19a-280 clearly states that the transfer of blood shall not be considered a commodity subject to sale or barter, but shall be considered a medical service. Although the parties agree that the wording of § 19a-280 is clear, their respective interpretations of the application of that statute differ dramatically. The plaintiff argues for a narrow interpretation of § 19a-280. The plaintiff maintains that the " 'blood shield' statute was patently designed to apply only to breach of warranty actions" brought under the Uniform Commercial Code and that it is "clear" that it "does not address product liability claims." The defendant, on the other hand, advocates a much broader application of the statute and argues that the "legislature has declared that provision of blood is a service, not a sale" for all purposes. The defendant contends that "[s]ince no sale is possible, a transfer of blood [cannot] result in a product liability claim under § 52-572m." The question before this court, therefore, is whether the transfer of blood can be considered a "sale" for purposes of a product liability claim under § 52-572m et seq.

We agree with the trial court that under § 19a-280 the plaintiff is precluded from asserting a product liability claim arising out of the transfer of blood by a hospital to a patient. "Where the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed by this court...." Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980). Under our rules of statutory construction, this court is to be guided by the language, purpose and legislative history of the statute in question. Caulkins v. Petrillo, 200 Conn. 713, 716-17, 513 A.2d 43 (1986). Although § 19a-280 does not use the term "product," the plain and unambiguous wording of that statute provides that the provision of blood is to be considered a medical service not a sale. "The title of legislation when it is acted upon by the...