[96 NJSuper Page 319] These are motions for summary judgment in favor of defendants Eastern Blood Bank (hereinafter referred to as Blood Bank) and Muhlenberg Hospital (hereinafter referred to as hospital). The legal issue is the liability of a commercial blood bank and a hospital for the contracting of hepatitis by a patient as a result of blood transfusions.
Plaintiff Fannie Lou Jackson was hospitalized at Muhlenberg Hospital from March 7 to March 20, 1964, and was operated upon there. During her hospitalization she received five blood transfusions. The blood for four of the transfusions was purchased by the hospital from Eastern Blood Bank for $18 per container. The hospital charged the patient $25 for each container of blood and $20 for the transfusion thereof. The fifth transfusion was of blood received from another defendant, Essex County Blood Bank, a voluntary, nonprofit organization, which has brought no motion.
Mrs. Jackson contracted hepatitis attributed to the transfusions. She and her husband Culbert Jackson both seek damages from all three defendants.
For the purpose of these motions it is assumed by all of the parties that the female plaintiff was infected with homologous serum hepatitis by the transfusion into her body of the blood furnished by Blood Bank to the hospital and furnished by the latter to her.
Two of the bottles of blood furnished by Blood Bank were obtained by it from known individuals and were processed by it. Two other pints were obtained from Interstate Blood Bank of Memphis, Tennessee, not a party to this action.
It appears by affidavit on these motions, and it is not disputed, that:
1. At the time that the blood was furnished by Blood Bank to the hospital there was and there now is no test known to science for determining whether human blood contains the virus of homologous serum hepatitis. See State v. Weiner, 41 N.J. 21 (1963).
2. Every bottle of blood furnished by Blood Bank to the hospital bore in two places in two sizes of type the following disclaimer:
"Despite the utmost care in the selection of donors, human blood may contain the virus of Homologous Serum Hepatitis. Therefore Eastern Blood Bank does not warrant against its presence in this blood."
Plaintiffs allege negligence on the part of all defendants. They also base their claims upon an implied warranty of fitness of the blood for the use intended, or strict liability for furnishing dangerously defective goods.
Plaintiffs contend that the blood was a sale of goods by Blood Bank to the hospital and by the hospital to them. Defendants deny there were any sales and contend that the furnishing of blood was a service not bearing the warranties implied on a sale. Defendants rely on Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E. 2 d 792 (1954), a 4-3 decision of the New York Court of Appeals denying recovery against a hospital for hepatitis contracted from transfusion of blood. The majority of the court held that the furnishing of the blood was not a sale but a part of the service rendered by the hospital, and that no warranty was implied. There was a vigorous and persuasive dissent by Judge Froessel, concurred in by Judges Conway and Dye.
Liability for harm resulting from the transferring of blood bearing the virus of hepatitis has been denied in many jurisdictions. In some of the cases defendants enjoyed charitable immunity from tort liability. However, the cases have generally accepted the view of the majority in Perlmutter that no sale was involved. See Sloneker v. St. Joseph's Hospital, 233 F. Supp. 105 (D. Colo. 1964); Gile v. Kennewick Public Hospital Dist., 48 Wash. 2 d 774, 296 P. 2 d 662, 59 A.L.R. 2 d 761 (Sup. Ct. 1956); Koenig v. Milwaukee Blood Center, Inc., 23 Wis. 2 d 324, 127 N.W. 2 d 50 (Sup. Ct. 1964); Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah 2 d 241, 364 P 2 d 1085 (Sup. Ct. 1961); Goelz v. J.K. and Susie L. Wadley Research Institute, 350 S.W. 2 d 573 (Tex. Civ. App. 1961); Whitehurst v. American National Red Cross, 1 Ariz. App. 326, 402 P. 2 d 584 (Ct. App. 1965); Balkowitsch v. Minn. War Memorial Blood Bank, Inc., 270 Minn. 151, 132 N.W. 2 d 805 (Sup. Ct. 1965).
Perlmutter has been questioned and criticized in 103 U. Pa. L. Rev. 833 (1954-5); 18 Okla. L. Rev. 104 (1965);
37 Notre Dame L. Rev. 565 (1962); Farnsworth, "Implied Warranties of Quality in Non-Sales Cases," 57 Col. L. Rev. 653 (1957); 69 Harv. L. Rev. 391 (1955); 29 St. John's L. Rev. 305 (1955); 42 Minn. L. Rev. 640 (1958); Gottsdanker v. Cutter Laboratories, 182 Cal. App. 2 d 602, 6 Cal. Rptr. 320, 79 A.L.R. 2 d 290 (App. Ct. 1960).
Florida has rejected Perlmutter as applied to a blood bank. Russell v. Community Blood Bank, Inc., 185 So. 2 d 749 (D. Ct. App. 1966), affirmed in this respect sub nom. Community Blood Bank, Inc. v. Russell, 196 So. 2 d 115 (Fla. Sup. Ct. 1967); Hoder v. Sayet, 196 So. 2 d 205 (Fla. D. Ct. App. 1967).
"It is doubtful that New Jersey would follow Perlmutter, at least insofar as it holds that a 'sale' was not involved or that such description of the transaction is necessary to establish strict liability. See cases cited, supra. Perhaps a more valid ground for the decision is the majority's secondary consideration that, because it is impossible to avoid some portion of hepatitis strain in blood used for transfusion, strict liability should not be applied." (at p. 237)
Magrine did not involve a blood transfusion and this statement was dictum. There appears to be no other case in New Jersey dealing with the subject.
In the Uniform Commercial Code as adopted in New Jersey effective January 1, 1963, at N.J.S. 12A:2-106, a sale is defined as follows: "A 'sale' consists in the passing of title from the seller to the buyer for a price." The reference is to the sale of goods defined in N.J.S. 12A:2-105(1) as follows:
"(1) 'Goods' means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Chapter 8) and things in action. 'Goods' also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (12A:2-107)."
In State v. Weissman, 73 N.J. Super. 274 (App. Div. 1962), the court dealt with the contention that the proof failed to establish a sale of narcotics by defendant within the meaning of the criminal statute forbidding such sales, R.S. 24:18-4. The evidence showed that defendant delivered marijuana to another under an arrangement whereby the latter would pay defendant for the goods when she sold them, and she did pay him after selling to others. The court held that this constituted a sale by defendant. In the course of the opinion Judge Lewis said:
"Under the Uniform Sales Act a sale implies and involves the passing of title. Indeed, 'title' is an implicit element under the Uniform Commercial Code now adopted in New Jersey (L. 1961, c. 120, effective January 1, 1963), wherein it is stated that a '"sale" consists in the passing of title from the seller to the buyer for a price.' N.J.S. 12A:2-106. This is but a constricted construction of the word as employed in a specific area of the law. The broad aspect of the term 'sale' signifies the transfer of property from one person to another for a consideration of value, without reference to the particular mode in which the consideration is payable. 46 Am. Jur., Sales, sec. 2, pp. 194, 195. It is 'a transmutation of property from one man to another in consideration of some price or recompense in value, * * *.' Ibid. See also 2 Blackstone's Commentaries, c. 30, p. 446."
See also Motor Cargo, Inc. v. Division of Tax Appeals, 10 N.J. 580, 585 (1952).
The Uniform Commercial Code in N.J.S. 12A:2-314(1) has put to rest the widely criticized holding of Nisky v. Childs Co., 103 N.J.L. 464, 50 A.L.R. 227 (E. & A. 1927), that the serving of food or drink in a restaurant amounts to a "service" and not a "sale" and bears no warranty of wholesomeness. See also Sofman v. Denham Food Service, Inc. 37 N.J. 304 (1962), especially the concurring opinion of Justice Schettino.
The rule that food served in a restaurant was not impliedly warranted to be fit for human consumption although food sold in a store was so warranted, had no support in modern concepts of justice. It was an anachronism. It is unthinkable that such a legalism should be revived to
avoid holding hospitals and blood banks liable. If these valuable organizations are to be exempted from liability, the immunity should be based upon the true policy consideration and not upon an irrelevant circumstance. See Collopy v. Newark Eye and ...