Mrs. Jackson was hospitalized at Muhlenberg Hospital during March, 1964. While there she was operated upon and received five blood transfusions. The blood for fоur of the transfusions was received by the Hospital from the Eastern Blood Bank and the blood for the fifth transfusion was received by it from the Essex County Blood Bank. Mrs. Jaсkson contracted hepatitis which she attributed to the transfusions. She and her husband sued the Hospital, the Eastern Blood Bank and the Essex County Blood Bank, charging thеm with negligence and with breach of an implied warranty of merchantability and fitness. The Hospital and the Eastern Blood Bank each moved for summary judgment but no such motion was filed on behalf of the Essex County Blood Bank.
The sketchy record before us discloses how little was the materia] furnished to the trial court in connection with the motions. An affidavit by the Medical Director of the Eastern Blood Bank set forth that two of the four units sent by it to the Hospital were received from twо named individual donors and that the other two units were received from the Interstate Blood Bank of Memphis which, in turn, had received them from two named individual donors. Attached copies of questionnaires bore checkmark answers by the donors to inquiries as to their previous illnesses but contained little or nothing in the way of background information. The Director asserted flatly that “there was no
The Eastern Blood Bank is engaged in business for profit. It pays eight dollars per pint to donors and charges hospitals eighteen dollars per pint. The Muhlenberg Hospital is a nonprofit corporation. It charges its patients twenty-five dollars per pint plus twenty dollars for each transfusion. It states that its charge “is purposely made high in оrder to provide an incentive for blood recipients to have a friend or relative donate a unit of blood which is then applied to offset thе charge” and that “this is considered desirable in order to avoid the necessity of purchasing blood from commercial blood banks who generally use indigеnt donors for their blood.” But the record does not contain anything to indicate that it notifies the patient of the stated reason for its high charge or of the inherent dangers and the legends
Despite the meagrе nature of the evidence before it, the trial court entertained the motions, made findings, and granted partial summary judgments. It found that Eastern and the Hospital owed the plaintiffs a duty of due care and that the plaintiffs could recover for any harm resulting from the negligence of Eastern and the Hospital; that Eastern had expressly warranted that it would use the utmost care in the selection of donors and that if there was a breach of this warranty the plaintiffs could recover for any resulting harm to them; that the presence of hepatitis virus in the blood furnished to Mrs. Jackson did not give rise to any cause of action sounding in impliеd warranty or strict liability in tort; and that Eastern and the Hospital were entitled to partial summary judgments on the plaintiffs’ claims insofar as they were based “on strict liаbility and implied warranty.” See Jackson v. Muhlenberg Hospital, 96 N. J. Super. 314 (Law Div. 1967). The plaintiffs appealed to the Appellate Division from the partial summary judgments in favor of Eastern and the Hospital аnd cross-appeals were taken by Eastern and the Hospital from the trial court’s refusal to grant full summary judgments against the plaintiffs. We certified while the cаse was awaiting argument in the Appellate Division.
During oral argument we were told that the Appellate Division had advised the parties that the trial court’s order was not a final judgment but was interlocutory and appeal-able only with leave. Thereupon, the plaintiffs purportedly abandoned all claims аgainst Eastern and the Hospital, other than the warranty or strict liability claim, as well as their entire claim against the Essex County Blood Bank. This was evidently done with a viеw towards obtaining a broad academic ruling on the issue of whether a commercial blood bank and a hospital may be held accountable on the basis of implied warranty or strict liability where their furnishing of blood containing viral hepatitis has resulted in consequen
In the fаctual situation presented here, the plaintiffs’ cause of action would traditionally be grounded on principles of negligence and accordingly their complaint contained appropriate allegations that the defendants had failed to exercise due care with consequential injury to the plaintiffs. The purported abandonment of their negligence claims, as well as their claim against the Essex County Blood Bank, could not under the circumstances have been in their real interests. We are satisfied that it should now be vacated and that the entire matter should proceed to trial. To that end the partial summary judgments are set aside and the plaintiffs’ claims on their alternative theories against all of the parties including the Essex County Blood Bank are reinstated. At the trial, a complete record should be made, including not only detailed testimony as to the nature of the defendants’ operations, but also expert testimony as to the availability of any tests to ascertain the presence of viral hepatitis in blood, the respective inсidences of hepatitis in blood received from commercial blood banks and other sources, and such other available testimony and materials as may be relevant to any of the questions presented by the parties, including such economic and other factors as may bear on the question of whether the doctrine of implied warranty or strict liability should apply to deliveries and
Reversed and remanded.
For reversal — Chief Justice Weiftkatjb and Justices Jacobs, Fkaxcis, Pkoctok, Schettino and Hafemaf—6.
For affirmance — None.