GROVES, Justice.
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.
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
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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:
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.
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.
LEE, Justice, dissenting.
I respectfully dissent.
In my view, the reasoning of this court in St. Luke's Hospital v. Schmaltz, 188 Colo. 353, 534 P.2d 781, should control the disposition
Additionally, in Schmaltz, we observed that it would not be wise to adopt " * * * a rule broadening the application of the tort doctrine of strict liability and liability for breach of warranty to encompass the transaction here, involving the hospital-patient blood transfusion situation; especially so, when within fifteen months after the transaction here involved our general assembly by statute specifically enunciated a declaration of public policy limiting liability to cases involving negligence or willful misconduct. * * *" This reasoning applies with equal force to the blood bank-recipient case here, particularly when the event giving rise to plaintiff's claim arose less than three months from the effective date of section 13-22-104, C.R.S.1973. The majority apparently is adopting a new rule of tort law for the purpose of this one case.
For the reasons expounded in Schmaltz, the judgment of the court of appeals should be reversed and the judgment of the trial court affirmed.
I am authorized to say that Mr. Justice HODGES and Mr. Justice KELLEY join in this dissent.
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