Myrna DENNIS, Petitioner, v. T.H. ALLISON, Respondent, 698 S.W.2d 94

CAMPBELL, Justice. Myrna Dennis sued Dr. T.H. Allison for physically beating and sexually assaulting her while she was being treated for psychiatric problems. The sole theory of recovery preserved for this court’s review is breach of implied warranty. The issues submitted to the jury inquired whether Allison breached an implied warranty to follow the ethical commandments for psychiatrists by physically beating and sexually using Dennis. The jury answered affirmatively and found that the breach was a proximate cause of Dennis’ damages.

The trial court disregarded the jury’s answers as immaterial and rendered judgment for Allison. The court of appeals affirmed the trial court’s judgment. 678 S.W.2d 511 (1984). We affirm the judgments of the trial court and the court of appeals. Prior to 1978, Dennis was a patient of Allison’s for thirteen years. Dennis contacted Allison in 1978 and complained of job-related problems. Allison suggested she travel to Dallas for consultation with him and arranged to meet her at a Dallas hotel. Allison arrived at the hotel in an intoxicated condition and physically beat and sexually assaulted Dennis.

Following the incident, he gave her a tranquilizer and promised to call her the next morning. Allison did not call, and Dennis checked into Baylor Medical Center where she was placed in the psychiatric unit. Implied warranty is a strict liability concept. Barbee v. Rogers, 425 S.W.2d 342 (Tex.1968); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942).

The implied warranty concept was developed by courts in an effort “to find some ground of strict liability which would make the seller in effect an insurer of safety of the product, even though he had exercised all reasonable care and even where there was no privity of contract between the victim and the target defendant.” W. Prosser & W. Keeton, Prosser and Keeton on The Law of Torts § 97 (5th ed. 1984). Courts began imposing an implied warranty as a matter of public policy based on an “implied misrepresentation or promise involving an objective manifestation of an intent to guarantee.” Id. § 98 at 692.

However, it was not necessary for the consumer to be in privity with the manufacturer or prove any culpable conduct. Id. The remedy was a hybrid of contract and tort concepts and was based on liability without fault, i.e., “liability that is imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care, i.e., actionable negligence.” Id. § 75.

Implied warranty imposes a duty on sellers as a matter of public policy to produce and distribute safe products regardless of proof of the sellers’ fault. Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960). Although the implied warranty concept was originally developed in contaminated food cases, it was later used as a basis for liability in cases involving the sale of a variety of products. Id. The implied warranty theory was adopted in Texas in a food contamination case. Decker, 164 S.W.2d 828.

This court determined that a contractual remedy would be laden with privity problems and a tort cause of action would be almost impossible to prove. In fact, a rule which would require proof of negligence as a basis of recovery would, in most instances, by reason of the difficulty of making such proof, be equivalent to a denial of recovery. It is well known that in many instances the product is processed in a distant state or in a foreign country many months prior to a discovery of the defect.

It would be impracticable, if not impossible, for the consumer to prove the circumstances under which a particular can of beans or meat eaten by him had been processed. Id. at 834. The implied warranty in Decker was “imposed by operation of law as a matter of public policy.” Id. at 829. Implied warranty did not require proof of any representation by the seller, nor any proof that the seller was negligent. The cause of action was not based on any express or implied terms of the contract. Id.

The same policy reasons for creating this implied warranty based on contractual concepts but requiring no proof of fault led to the adoption by many states of Restatement (Second) of Torts § 402A. “This

section accepts the principle of strict liability in tort as a more realistic theory of recovery than that of a contract warranty ...” Prosser and Keeton on the Law of Torts, § 98 at 693. In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, we extended the implied warranty which was imposed as a matter of public policy in Decker, to “defective products which cause physical harm to persons” and adopted Restatement (Second) of Torts § 402A. McKisson, 416 S.W.2d at 789. Since Texas’ adoption of

section 402A and also the implied warranties in the Uniform Commercial Code, we have determined that “the protection of Texas consumers no longer requires the utilization of an ‘implied warranty as a matter of public policy.’ ” Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77, 78 (Tex.1977) (quoting Decker, 164 S.W.2d at 829). In Nobility Homes we determined that other remedies were available to redress wrongs resulting from the use of a defective product.

We must now consider whether persons receiving professional treatment in fact situations similar to the one presented in this case have a remedy to redress wrongs committed during the course of treatment or whether it is necessary to apply a cause of action which imposes liability without fault. Although the question has not been addressed in Texas, other states recognize that a cause of action for medical malpractice or assault and battery are appropriate remedies for a plaintiff patient who has been sexually assaulted or beaten by a physician or psychiatrist. Greenberg v.

McCabe, 458 F.Supp. 765 (E.D.Pa.1978); Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980); Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968); Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y. S.2d 587 (N.Y.App.Div.1976). In Barbee v. Rogers, 425 S.W.2d 342 (Tex.1968), we considered a situation in which a patient sued his optometrist for breach of warranty for fitting, prescribing and selling contact lenses. This court refused to hold the optometrist strictly liable in that case because the contact lenses were not “a finished product offered to the general public in regular channels of trade.” Id. at 346.

We held “[t]he considerations supporting the rule of strict liability are not present.” Id. In a professional service situation, the client or patient can determine who is responsible for the improper conduct and pinpoint the specific wrong committed. Hoffman v. Simplot Aviation, Inc., 97 Idaho 32, 539 P.2d 584, 588 (1975). It is not necessary to impose an implied warranty theory as a matter of public policy because the plaintiff patient has adequate remedies to redress wrongs committed during treatment.

We hold that Allison is not liable on a breach of implied warranty theory for his improper treatment of Dennis. We affirm the judgments of the trial court and the court of appeals. RAY, J., files a dissenting opinion in which SPEARS and KILGARLIN, JJ., join. ROBERTSON, J., not sitting. . Dennis did not submit any other theory of recovery to the jury nor did she argue to the court of appeals that any other theory of recovery should be sustained. Therefore, she has waived recovery based on any ground other than implied warranty. See Tex.R.Civ.P. 279, Bickler v. Bickler, 403 S.W.2d 354 (Tex.1966).