finding blood, contaminated by hepatitis antibodies not then discoverable, as falling within the "unavoidably unsafe" product definition of comment k of § 402ASummary of this case from Shackil v. Lederle Laboratories
Argued January 6, 1975 —
Decided February 5, 1975.
Appeal from Superior Court, Appellate Division.
Mr. Ira J. Zarin argued the cause for the plaintiff-appellant ( Messrs. Zarin and Maran, attorneys).
Mr. William P. Ries argued the cause for defendant-respondent Overlook Hospital. Mr. Bartholomew A. Longo argued the cause for the defendant-respondent Essex County Blood Bank ( Messrs. Ryan, Saros, Davis and Stone, attorneys).
Mr. Henry Spielvogel appeared for the defendant William U. Cavallaro ( Messrs. Morgan, Melhuish, Monaghan, McCoid Spielvogel, attorneys).
Mr. John J. Francis, Jr. appeared for the New Jersey Blood Bank Association amicus curiae ( Messrs. Shanley and Fisher, attorneys; Mr. Albert L. Strunk, III, on the brief).
Mr. Eugene M. Haring appeared for the New Jersey Hospital Association amicus curiae ( Messrs. McCarter English, attorneys; Mr. Woodruff J. English, of counsel; Mr. Frederick B. Lehlbach, on the brief).
In 1966 blood obtained from the Overlook Hospital and the Essex County Blood Bank was used in a transfusion during an operation on the plaintiff's decedent at the Hospital. The blood was infected with viral hepatitis but the undisputed expert testimony was that such infection was then undiscoverable. The Appellate Division held that while the Hospital and the Blood Bank were under an obligation to use due care they were not accountable under the theory of strict liability in tort. Brody v. Overlook Hospital, 127 N.J. Super. 331 (1974). Sound policy considerations dictated that result and accordingly we affirm. See Hines v. St. Joseph's Hospital, 86 N.M. 763, 527 P.2d 1075 (1974); Annot., 54 A.L.R.3d 258 (1973). There are indications that subsequent to 1966 tests may have become available for discovering the viral infection but for present purposes we need not consider the adequacy of these tests or whether their present availability would hereafter result in accountability under the theory of strict liability in tort. Cf. Baptista v. Saint Barnabas Medical Center, 109 N.J. Super. 217 ( App. Div.), aff'd, 57 N.J. 167 (1970). The Appellate Division, in the context of blood transfusions and drug-type situations ( 127 N.J. Super. at 339), properly placed reliance on § 402A of the Restatement Torts 2d (1966), but for present purposes we need not consider whether its requirement of a showing that the product was "unreasonably dangerous" is to be deemed generally applicable in other contexts. Cf. Glass v. Ford Motor Co., 123 N.J. Super. 599 ( Law Div. 1973); Cronin v. J.B.E. Olson Corporation, 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Note, 5 Seton Hall L. Rev. 152 (1973).
For affirmance — Chief Justice HUGHES, Justices JACOBS, MOUNTAIN, SULLIVAN, PASHMAN and CLIFFORD and Judge CONFORD — 7.
For reversal — None.