Appellants then filed their responses to Appellees' motions for summary judgment. In response to that of Institute, and relying on the Oklahoma case of Gilmore v. St. Anthony Hospital, 598 P.2d 1200 (Okla. 1979), Appellants asserted that Dr. G.'s testimony that no other tests existed at the time did not constitute an absolute defense to Appellants' action, and that Dr. G.'s admission that Institute employed neither the anti-hepatitis B core antibody test nor the T4/T8 test created an unresolved issue of fact as to Institute's duty of care and/or breach of that duty, precluding summary judgment. Appellants also argued that Institute's policy of requesting donor self-exclusion, especially in voluntary group do nations during which the instant infected blood product was obtained, was insufficient for the purpose of excluding potentially at-risk donors and donations.
This is the rule applicable in negligence cases. See Prosser, Law of Torts, 166 (4th ed. 1971); Gilmore v. St. Anthony Hospital, 598 P.2d 1200, 1205, n. 6 (Okla. 1979); Fabian v. E. W. Bliss Co., 582 F.2d 1257, 1261 (10th Cir. 1970) (law of New Mexico applied). A similar result would seem to be applicable in products liability cases.
Finally, CME's contention that no other geotechnical drill rig manufacturers utilized a similar deadman switch when the subject drill rig left defendant's control is not dispositive, even if true. Though relevant to the negligence determination, compliance with industry custom and practice or โstate of the artโ does not relieve a manufacturer from liability if the manufacturer otherwise failed to exercise due care. See Smith v. Minster Mach. Co., 669 F.2d 628, 633 (10th Cir.1982); Gilmore v. St. Anthony Hosp., 598 P.2d 1200, 1205, n. 6 (Okla.1979). Both summary judgment motions will be denied as to the negligence claim.
Some are willing to review blood banks' donor screening policies. See, e.g., Gilmore v. St. Anthony Hosp., 598 P.2d 1200, 1206 (Okla. 1979) (finding that whether blood bank exercised reasonable care in screening and selecting donors is jury question); Hutchins, 506 P.2d at 453 (holding that blood bank not negligent where it did not accept blood from "dangerous donor[s]" such as addicts). Courts have deferred to industry practices and national guidelines when determining a blood bank's standard of care because it is reasonably certain that these standards are not negligent. Common law tort principles allow a defendant's adherence to industry custom to raise a possible inference that his conduct is reasonable.
; Wilson v. American Red Cross, 600 So.2d 216 (Ala. 1992); Spann v. Irwin Memorial Blood Centers, 34 Cal.App.4th 644, 40 Cal.Rptr.2d 360 (1995); Wilson v. Irwin Memorial Blood Bank, 14 Cal.App.4th 1315, 1317, 18 Cal. Rptr. 2d 517, 518 (1993); Osborn v. Irwin Memorial Blood Bank, 5 Cal.App.4th 234, 7 Cal.Rptr.2d 101 (1992); United Blood Services v. Quintana, 827 P.2d 509 (Colo. 1992); Bradway v. American National Red Cross, 263 Ga. 19, 426 S.E.2d 849 (1993); Anonymous Blood Recipient v. William Beamont Hospital Southeastern Michigan Chapter American Red Cross, No. 89-363705-NH (Cir. Ct. Oakland County, Mich. 1991); Doe v. American Red Cross Blood Services, 297 S.C. 430, 377 S.E.2d 323 (1989); but see Kozop v. Georgetown University, 663 F. Supp. 1048 (D.D.C. 1987); Snyder v. American Ass'n of Blood Banks Mekhjian, 144 N.J. 269, 676 A.2d 1036 (1996); Gilmore v. St. Anthony Hospital, 598 P.2d 1200 (Okla. 1979). The Brown court explained very well the rationale for viewing blood banking as a profession:
1985); Wilds v. Universal Resources Corp., 662 P.2d 303, 307 (Okla. 1983); Gilmore v. St. Anthony Hosp., 598 P.2d 1200, 1202 (Okla. 1979); Weeks v. Wedgewood Village, Inc., 554 P.2d 780, 784 (Okla. 1976); Runyon v. Reid, 510 P.2d 943, 946, 58 A.L.R.3d 814, 818 (Okla.
In a negligence action, the burden is not upon plaintiff to prove defendant was negligent in order to avoid defendant's motion for summary judgment. Gilmore v. St. Anthony Hospital, 598 P.2d 1200, 1205 (Okla. 1979). Both courts `presumed' Shopper could not prove her case at trial, rather than whether Shopper had raised an issue fact as to Store's negligent failure to inspect the premises.
21 C.F.R. ยง 606.120 (b)(2) (1982). Several courts have indicated that the source of transfused blood is relevant to the plaintiff's prima facie case of negligence against a blood bank. Hoder v. Sayet, 196 So.2d 205 (Fla.Dist.Ct.App. 1967); Hutchins v. Blood Services of Montana, 161 Mont. 359, 506 P.2d 449 (1973); Gilmore v. St. Anthony Hospital, 598 P.2d 1200 (Okla. 1979). But see Underwood Memorial Hospital, supra.
The summary disposition was hence proper.Gilmore v. St. Anthony Hospital, Okla., 598 P.2d 1200, 1205 [1979]; Runyon v. Reid, supra note 6, 510 P.2d at 946 [1973]. Motorist's contention that the proximate cause issue cannot be decided by summary judgment is without merit for "when the facts are not in dispute . . . proximate cause is a question for the court."
It also is well-settled in Oklahoma that a plaintiff is not required to prove his entire case in order to avoid a motion for summary judgment, but must show only that a controversy exists. Gilmore v. St. Anthony Hospital, 598 P.2d 1200, 1205 (Okla. 1979). In its trial court brief, OXY argued the following facts were undisputed: