81 Misc. 2d 163 | N.Y. Sup. Ct. | 1975
Due to some clerical error this matter appeared as an unopposed motion on the December 16, 1974 calendar of Special Term Part I and was granted on default by order dated December 17, 1974. However, it appears that the parties had adjourned the motion, by consent, until December 30, 1974 and, so, this court’s prior decision is hereby vacated and set aside.
This is an action brought by plaintiffs to recover for damages sustained as a result of the alleged negligence and malpractice of the defendant. It is claimed that blood given to the plaintiff Lillian Simone in transfusions was of inferior quality, diseased, impure and infected as a consequence of which she became infected with hepatitis. The original complaint contained a first cause of action based upon alleged negligence and a second cause of action based upon breach of warranty. Plaintiffs now move this court for leave to serve an amended complaint containing a third cause of action grounded upon the doctrine of strict products liability as spelled out in Codling v Paglia (32 NY2d 330).
Ordinarily leave to serve an amended complaint is freely granted absent prejudice or surprise to the defendant (CPLR 3025; Janangelo v Falshaw, 39 AD2d 763). However, denial of leave to serve a supplemental pleading is appropriate when the new material is clearly insufficient to state a cause of action (Keller v Greyhound Corp., 41 Misc 2d 255; B. v B., 78 Misc 2d 112). Such is the case herein.
In order for warranty liability to be found there is a general requirement that a sale must have been made. The question of whether a hospital can be held responsible on the theory of breach of warranty when supplying blood from which a party contacts serum hepatitis was squarely met and answered in the negative by the Court of Appeals in Perlmutter v Beth
While the Court of Appeals in Codling (supra) extended a manufacturer’s liability to a nonpurchasing nonuser of a product there is nothing in that opinion from which it can be concluded that the Court of Appeals is of the view that the concept of strict liability is to be applied to the furnishing of services, e.g., the supplying of blood by means of a transfusion. The essence of the strict products liability doctrine as set forth in Codling (supra) is that a party injured by a defective product may recover damages from the manufacturer of that defective product, without the requirement of proving that the manufacturer was negligent. The reported strict liability cases following Codling have all involved normal commercial transactions wherein a product which allegedly caused injury was placed on the market and was made available to the public through the stream of commerce for the purpose of profit. None has held or suggested that the furnishing of services is encompassed by the doctrine.
Recently in Shepard v Alexian Bros. Hosp. (33 Cal App 3d 606) the Court of Appeal, Division 2, was called upon to decide the question of whether or not a blood transfusion, the alleged cause of the plaintiffs \ injury, constituted a cause of action under the doctrine of strict liability. At issue therein was a statute adopted by the State of California (Health and Safety Code, § 1606) which is not unlike subdivision 4 of section 580 of the Public Health Law. It is interesting to note that the rationale behind section 1606 was expressed in the Perlmutter case (supra). The court held (p 610) that "since section 1606 and its underlying rationale compel the conclusion that a
In my judgment the rationale of the Shepard case (supra) is sound and should be adopted as the law of this State. Like the California Court of Appeal, I am disposed "to adhere to the time-honored, well-established law which states that those who sell their services for the guidance of others in their economic, financial and personal affairs are burdened only with a duty of reasonable performance under the circumstances and cannot be made liable in the absence of negligence or intentional misconduct [cases cited]” (pp 613-614).
In light of the above, plaintiffs’ motion for leave to serve the amended complaint is denied.