dissenting:
While I can agree with much of the Majority Opinion, I cannot agree with the result reached in that opinion. In reversing the Summary Judgment granted to the Oklahoma City Community Blood Bank, the majority held that a material issue of fact was yet to be resolved. That issue is, whether the Blood Bank used reasonable means in screening its donors.
I do not believe we can legitimately base a reversal of the Summary Judgment on that issue, as it is not raised in the pleadings, nor was it raised in the briefs of the parties. Since it was not an issue in the case, the Blood Bank was not required to address it in order to be entitled to a summary judgment. To hold otherwise would put an untenable burden upon defendants, as it would require them to anticipate every possible act of negligence that could feasibly have led to an alleged injury, then present evidence that such acts had not occurred. For example, in the case before us, I think it is at least feasible that the blood could have been contaminated if a portion of the blood were spilled, then replaced. Yet, if such acts are not alleged, I do not think it incumbent upon a defendant to come in and prove that such never occurred. It puts the defendant in the position of having to imagine all possible negligent acts, and then negating them. Such a burden should not be placed upon a party, particularly in,light of the fact that a plaintiff, who chooses to rely upon a particular act of negligence, can plead it, thus making it an issue in the case. I would hold such was not an issue and therefore the Blood Bank should not have been required to introduce evidence addressing that issue, in order to be entitled to its Summary Judgment.
The only argument made by Appellants on appeal is that the evidence introduced at trial, showing that blood was obtained from a paid donor, and that the incidence of hepatitis is higher in blood obtained from paid donors, was some evidence of negligence on the Blood Bank’s part.
The unarticulated assumption underlying this argument is that it is negligent to obtain blood from a paid donor. Public policy alone would dictate that this analysis is unacceptable. Whether or not a donor is paid is not, in and of itself, an indicia of *1207unaeceptability. Indeed, even the statistics relied upon by the plaintiffs indicate that approximately ninety per cent of all blood collected from paid donors is not contaminated with serum hepatitis. Rather, certain categories of individuals, who are more apt to donate blood for pay, are more likely to have contaminated blood than those not in the categories. In Hutchins v. Blood Services of Montana, 161 Mont. 359, 500 P.2d 449 (1973), the Supreme Court of Montana recognized three such categories, when they noted that prison inmates, bums, and addicts would all be dangerous donors. If the donors in the case before us were to fall in one of these groups, I would agree that evidence of negligence would be present. But the mere fact that the donor was a paid donor does not evidence any negligence.
Current automobile accident statistics indicate that there is a much higher rate of accident frequency among male drivers under the age of thirty. Yet, I do not believe that the entrustment of an automobile to a male who falls in that age group would be evidence of negligent entrustment. Rather, the issue in a negligent entrustment action would be centered around the attributes, habits, and reputation and the like of the particular party to whom the car was entrusted, and the care taken by the party entrusting the automobile. Likewise, the issue in the case before us should center around the particular donor in this case and the screening procedures used by the Hospital. The mere fact that the particular donor happens to fall into a statistical grouping, just as young male drivers do, is not evidence of negligence.
Unfortunately, these issues, which could have been viable issues in the case, were not raised by the plaintiffs in their petition or in their briefs. No argument was made that improper screening was present. Petitioners’ sole argument was based upon their theory that the mere fact that a paid donor was involved was some evidence of negligence. As discussed above, such is not the case, for such an analysis is based upon an erroneous unarticulated assumption. Even if the assumption had some credence, we would again point out that it was not an issue raised in the case until late in the appellate stage, and therefore was not an issue which had to be addressed by the Blood Bank in order to obtain a summary judgment.
For these reasons, I cannot acquiesce in the Court’s Majority Opinion. This being the case, I must respectfully dissent.