Leonard, Allcorn and Crahay. The opinion of the court was delivered by Leonard, P.J.A.D.
Defendants Overlook Hospital (Overlook) and Essex County Blood Bank (County Blood Bank), with leave first granted, appeal from a judgment as to liability only, entered upon a jury verdict against them and in favor of plaintiff.
On December 18, 1966 decedent Eugene Brody was admitted to Overlook for the treatment of a severely comminuted fracture of his right femur. On the same day defendant William V. Cavallaro, an orthopedic specialist, performed an open reduction. At the doctor's order two pints of blood were transfused during the operation and one pint post-operatively. Two of the pints of blood were obtained from the hospital's blood bank and one pint from the County Blood Bank. Brody was discharged on February 1, 1967.
On February 14, 1967 he was re-admitted to Overlook with a final diagnosis of "serum hepatitis secondary to blood transfusion in December, 1966 with shock and renal failure."
Three days later he was transferred to Mt. Sinai Hospital in New York for an exchange transfusion and expired there the next day.
On February 10, 1969 plaintiff filed her complaint as executrix of the estate of her deceased husband and in her own right against defendants Overlook, County Blood Bank, Dr. Cavallaro and others (not presently involved in this appeal), charging them with negligence and breach of warranty.
On the day fixed for trial the trial judge first rendered a "Decision" (reported at 121 N.J. Super. 299) which determined, among other things, that if the jury found that decedent died of viral hepatitis due to contaminated blood supplied by the hospital and County Blood Bank, the theory of strict liability would apply to these two defendants. Thereupon, the matter was tried with a jury on the issue of liability alone and was submitted upon the following special interrogatories and instructions:
1. Was serum hepatitis communicated to the decedent, Eugene Brody, by virtue of blood transfused into him at the Overlook Hospital in December of 1966?
2. If the answer to number 1 is "no" then you will go no further but will return a verdict of no liability.
3. If the answer to number 1 is "yes," then did this contaminated blood proximately cause the death of the decedent, Eugene Brody?
4. If the answers to 1 and 3 are "yes," then you will return a verdict that the defendants Overlook Hospital and Essex County Blood Bank are liable.
The jury unanimously answered 1 and 3 in the affirmative and accordingly rendered a verdict holding the hospital and County ...