NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 98-060
IRA A. AND RACHEL M. ROYER
v.
CATHOLIC MEDICAL CENTER
November 23, 1999
Abramson, Reis, Brown & Dugan, of Manchester (John P. Fagan and Jared R. Green on the brief, and Mr. Green orally), for the plaintiffs.
Nelson, Kinder, Mosseau & Gordon, P.C., of Manchester (Robert M. Daniszewski and Gordon J. MacDonald on the brief, and Mr. Daniszewski orally), for the defendant.
BROCK, C.J. The plaintiffs, Ira A. and Rachel M. Royer, appeal from an order of the Superior Court (Sullivan, J.) granting a motion to dismiss in favor of the defendant, Catholic Medical Center (CMC). We affirm.
The plaintiffs have pleaded the following facts. In September 1991, Ira Royer underwent total knee replacement surgery at CMC. As part of the procedure, a prosthetic knee, provided by CMC, was surgically implanted. In April 1993, Royer complained to his doctor that the pain in his knee was worse than it had been before the surgery. His doctors determined that the prosthesis was defective, and in June 1993 Royer underwent a second operation in which the prosthesis was removed, and a second prosthesis inserted.
Ira Royer initially brought suit against Dow Corning Corp., Dow Corning Wright, Inc., and Wright Medical Technologies, Inc., the companies that had allegedly designed and manufactured the defective prosthesis. Subsequently, Dow Corning commenced federal bankruptcy proceedings, and the plaintiffs filed a second writ against CMC, alleging that CMC was strictly liable to Ira because it had sold a prosthesis with a design defect that was in an unreasonably dangerous condition, and liable to Rachel who suffered a loss of consortium.
The defendant moved to dismiss, arguing, inter alia, that it was not a "seller of goods" for purposes of strict products liability, and that absent the strict liability claim, the loss of consortium claim could not stand. The trial court granted the motion, finding that CMC was not, as a matter of law, engaged in the business of selling prosthetic devices. On appeal, the plaintiffs contend that this finding was error.
In reviewing an order on a motion to dismiss for failure to state a claim upon which relief may be granted, we ask whether the plaintiffs' allegations are reasonably susceptible of a construction that would permit recovery. We assume the truth of the plaintiffs' well pleaded allegations of fact and construe all reasonable inferences from them most favorably to the plaintiffs.
Hacking v. Town of Belmont, 143 N.H. ___, ___, 736 A.2d 1229, 1232 (1999) (quotations, citation, and brackets omitted).
In New Hampshire, "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to [strict] liability for physical harm thereby caused" if, inter alia, "the seller is engaged in the business of selling such a product." Restatement (Second) of Torts