dissenting:
I respectfully dissent.
In my view, the reasoning of this court in St. Luke’s Hospital v. Schmaltz, 188 Colo. 353, 534 P.2d 781, should control the disposition of this case. As noted by Judge Enoch in his dissent to the court of appeals decision, which reversed the trial court, our court in Schmaltz, supra, followed the majority view which denies claims “* * * against hospitals or blood banks, based either on the theory of strict liability in tort or breach of warranty * * * (citing cases).” (Emphasis added.)
Additionally, in Schmaltz, we observed that it would not be wise to adopt “* * * a rule broadening the application of the tort doctrine of strict liability and liability for breach of warranty to encompass the transaction here, involving the hospital-patient blood transfusion situation; especially so, when within fifteen months after the transaction here involved our general assembly by statute specifically enunciated a declaration of public policy limiting liability to cases involving negligence or willful misconduct* * * ” This reasoning applies with equal force to the blood bank-recipient case here, particularly when the event giving rise to plaintiffs claim arose less than three months from the effective date of section 13-22-104, C.R.S. 1973. The majority apparently is adopting a new rule of tort law for the purpose of this one case.
For the reasons expounded in Schmaltz, the judgment of the court of appeals should be reversed and the judgment of the trial court affirmed.
I am authorized to say that MR. JUSTICE HODGES and MR. JUSTICE KELLEY join in this dissent.