(502 P.2d 1127)
No. 71-394Colorado Court of Appeals.
Decided August 29, 1972. Rehearing denied October 3, 1972. Certiorari denied December 4, 1972.
Action for damages by patient who contracted staphylococcus infection while in defendant hospital. Upon remand following earlier appeal, plaintiff’s remaining claim, premised on breach of an express contract, was dismissed. Plaintiff appealed.
Affirmed
1. LIMITATION OF ACTIONS — Action Against Hospital — Mere Production — Express Contract — Not Make — General Statute — Applicable — Implied Terms — — Must Emanate — Therefrom. In damages action by patient against hospital based on alleged breach of an express contract, the mere production of an express contract is not enough to make the general six-year statute of limitations applicable, rather the implied terms sued upon must emanate from the express contract.
2. Implied Warranty — Not Arise — Alleged Express Contract — General Statute — Inapplicable — Statute — Health Establishments — Applicable. In damages action by patient against hospital, even assuming that document entitled “Conditions of Admission” does constitute an express contract, no implied warranty arose from the terms of the admission document; thus, the general statute of limitation relating to express contracts is inapplicable, and the statute of limitation relative to actions against health establishments sounding in tort or implied contract is applicable.
3. Action — Implied Warranty — Express Contract — Conditions — General Statute Applicable — Implied Contract — Two-year Statute — Applicable. Where an implied warranty does not arise or cannot exist in the absence of an express contract, an action on the implied warranty may be said to be action upon the express contract for breach of an implied condition, with the six-year statute of limitation thereby being applicable; but where the only warranty sued upon arises as a result of either the conduct of the parties or upon customary standards, a violation of that warranty is properly the subject matter of a suit upon an implied contract of warranty, and in regard to an action against a hospital the two-year statute of limitation relative to actions on implied contract is applicable.
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Appeal from the District Court of Larimer County, Honorable Robert Miller, Judge.
Patrick J. McHugh, John Perrott, for plaintiff-appellant.
Wells, Johnson, Anderson Dressel, Samuel L. Anderson, for defendant-appellee.
Division I.
Opinion by JUDGE SMITH.
Jane Adams entered defendant hospital for a surgical operation. After undergoing the operation, she contracted a staphylococcus infection. More than four years after the discovery of the infection, she sued the hospital, asserting three grounds for recovery. The third ground for recovery alleged breach of an express contract by violation of an express or implied warranty that the facilities would be fit for the use intended by the plaintiff. The complaint was dismissed in its entirety on the basis that the two-year statute of limitations, 1967 Perm. Supp., C.R.S. 1963, 87-1-6,[1] had run. Appeal to the Supreme Court of Colorado resulted in the judgment being affirmed as to the dismissal of
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the first two claims for relief and reversed as to the claim under the express contract. Adams v. Poudre Valley Hospital District, 173 Colo. 98, 476 P.2d 565. The breach of contract claim was remanded to the trial court with instructions to determine if plaintiff had a claim of relief based upon the terms of an express contract. The trial court determined that there was no express contract and again granted defendant’s motion for summary judgment of dismissal. Plaintiff appeals from this ruling. We affirm the granting of the motion and the judgment entered thereon.
[1, 2] The opinion in Adams, supra, concludes that if an express contract existed between plaintiff and defendant, the plaintiff’s action thereon would not be barred by the two-year statute of limitations, and instead, the six-year statute, 1965 Perm. Supp., C.R.S. 1963, 87-1-11, dealing with express contracts would be applicable. The mere production of an express contract, however, is not enough. In addition, the implied terms sued upon must emanate from the express contract. If they do not, then 1967 Perm. Supp., C.R.S. 1963, 87-1-6, the two-year statute of limitation, is applicable. Even if we assume that the document offered the trial court by plaintiff entitled, “Conditions of Admission,” does constitute an express contract, we find no terms in this admission document which would entitle plaintiff to relief under he allegations in the present action. The admission document mentions only general duty nursing and in no way refers to the conditions of the hospital or fitness of the premises for the plaintiff. While we do not deny that there may have been an implied warranty in the present situation, we conclude that no implied warranty
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arose from the terms of the admission document. Therefore, the general statute of limitation relating to express contracts is inapplicable.
[3] Where an implied warranty does not arise or cannot exist in the absence of an express contract, it may be said to emanate from, and be a part of, that express contract. In such case, an action on the implied warranty may be said to be an action upon the express contract for breach of an implied condition. Where, as in this case, the only implied warranty sued upon arises as a result of either the conduct of the parties or the customary standards of hospitals, irrespective of the existence of the admission document, a violation of that warranty may not be sued upon as a breach of the asserted express contract, but is properly the subject matter of a suit upon an implied contract of warranty.
Since the admission document does not contain provisions which would support the instant action, and the implied warranty sued upon does not arise therefrom, it is not necessary for us to determine the correctness of the trial court’s ruling relative to the existence of an express contract. The trial court correctly held the action barred by the two-year statute of limitations.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.
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