*1 1510-A; § Md.Code, tit. 5 Rev. State Stat. 3.751; 12-201(a); § COMPANY, § The AMERICAN TOBACCO Minn. Stat. Gov’t 41.031; § N.H. INC., Petitioner Rev. Stat. Nev. Rev. Stat. 491:8; 37-1-23; § § N.M. Stat. N.Y. Ct. Cl. 32-12-02; 8; § § N.D. Ohio Act Cent.Code 2743.02(A)(1); § OR. Rev. Stat. Rev.Code individually GRINNELL, and as Jeannie 4651-1; 30.320; § § R.I. 72 Pa. Cons.Stat. independent executrix of the Estate 37-13.1-1; § § 9-8- Tenn.Code Gen. Laws Wiley Wiley Grinnell, Jr., deceased, 307(a)(l)(L); §§ 21-32- S.D. Codified Laws Grinnell, Sr., and Kevin Grin Frances 63-30-5; 2, 21-32-10; § Wash. Utah Code nell, Respondents. 4.92.010; §§ § 14-2- W. Va.Code Rev.Code fact, Wyo. 4, 14-2-13; § 1-39-104. Stat. 94-1227. No. only provide no relief for breach two states the state other than against contract claims Supreme of Texas. Court approval private of a bill. See Vt. legislative (statute waiving tort tit. Stat. Argued Feb. any liability apply to claim for does not operations fiscal “damages caused 20, 1997. Decided June department”); Wis. Stat. any state officer or 2, 1997. Rehearing Overruled Oct. (establishing § 16.007 a Claims Board against claims hear breach of contract remedy proposing a only
state with
private legislature). bill recognize
Perhaps all these other States problems concluding that sov-
the inherent
ereign immunity precludes suits on contracts. carefully would
Notably, the concurrence open the holding to leave
narrow the Court’s by private
possibility against of suit State performance, per-
parties have tendered who property, delivered
formed services on State State, loaned the State
materials to the (Hecht, J., at 412
money. See
concurring). align opportunity to
This had the Court majority of other
this with the vast State against the State permitting suits
states However, the of contract claims. for breach leaving opportunity, Tex-
Court declined minority.
inas the distinct
IV. CONCLUSION the State
Today the holds Court liability immunity from just
waives only that can contract —a decision
enters a According to the a cateh-22. described as
be
Court, for its breach the State can be liable contract, held liable. but it cannot be respectfully
I dissent. *4 Cruse, Houston, Lohse, Sam W.
Jana F. *5 Yollins, Riley, L. Thomas E. Steven Thomas Oxford, York, NY, Bezanson, E. New Hubert Beaumont, III, for Petitioner. Gonsoulin, Gaultney, Dewey B. J. David Beaumont, Massey, Washington, Jonathan Potter, III, Aus- DC, Harry Jorge Vega, G. MA, Tribe, tin, Cambridge, for Lawrence H. Respondents.
CORNYN, Justice, opinion of delivered PHILLIPS, Court, in Chief which SPECTOR, GONZALEZ, Justice, and Justices, ABBOTT, join. BARER and case, we confront wrongful In this death public health and profound with issue “common whether policy consequences: health risks knowledge” of the any companies of smoking relieves tobacco Apply- risks. of those duty to warn smokers standard, summary judgment ing our usual has conclu- defendant conclude that the we of common sively the defense established general regard to with conclude, howev- also smoking. We risks of conclusively er, has not the defendant knowledge defense the common established ciga- nature of the addictive regard with Accordingly, conclude we rettes. summary judgment is entitled defendant claims, most, plaintiffs’ not all of the but to the trial surviving claims and remand proceedings. further court for post-1965 activities based on in- nineteen-year-old Wiley In Grinnell American’s Strikes, adequate warnings advertising pro- smoking Lucky cigarettes began materials. American’s second mo- by motional manufactured the American Tobacco preempted all later, tion that federal law year asserted Company. Almost a post-1965 upon claims based Malls, of the Grinnells’ by Pall changed to also manufactured motion, activity. American its “renewed” approximately After American. asserted that all of the Grinnells’ claims were years, diagnosed thirty-three Grinnell was Cigarette preempted the Public Health Shortly July cancer in Smoking Act of 1969 or otherwise barred thereafter, he filed this lawsuit. He died less granted Texas The trial court all three law. year family later. contin- than Grinnell’s suit. motions and dismissed the Grinnells’ death, adding wrongful ued this suit after his appeals trial The court of reversed the family alleg- death and survival claims. The judgment court’s and remanded the entire of, American and ac- es that failed warn case. 883 concealed, tively facts that knew or should known, including have the facts that Grinnell reviewing summary judgment, we When quickly cigarettes could become addicted (1) The follow these well-established rules: injury and that his could result or showing movant has the burden of that there cancer-causing ingredients death from the genuine is no issue of material fact and that he used the as American intended. law; judgment it is entitled to as a matter of that, They allege though also even American (2) disputed deciding whether there is a ciga- knew should known that summary judg precluding material fact issue dangerous rettes were and could not be used ment, evidence favorable to the nonmovant safely, represented American to consumers true; every reason will be taken as harmful, dangerous, were not indulged in able inference must be favor capable causing injury. any re the nonmovant and doubts must be in favor of the nonmovant. Nixon v. solved essentially The Grinnells assert six in- *6 Property Management Mr. 690 S.W.2d (1) liability design, terrelated claims: strict (Tex.1985). 546, Summary judgment 548-49 (2) defect; marketing, manufacturing and proper disproves is if the defendant at least warn, negligent testing, misrepre- failure to claims, plaintiffs one element of each (3) sentation, design; and affirmative fraudu- Dallas, Inc., Boys v. Doe Clubs Greater misrepresentation lent and fraudulent con- (Tex.1995), 476-77 or estab 907 S.W.2d (4) cealment; Deceptive Act Trade Practices lishes all elements of an affirmative defense deceptive violations for failure to disclose and Kennedy, Montgomery to each claim. v. 669 (5) advertising; express breach of im- and (Tex.1984). 309, 310-11 We first ad S.W.2d (6) warranties; plied conspiracy. and civil which dress those claims to defenses other They also assert claims based on violations of preemption apply. than federal 321, 389, 519, sections 520 of the Restate- (Second) 1977). (1965, ment Torts I. Duties Common-Law gravamen complaint of their is that Grinnell began smoking because American did not Liability A. Strict potential dangers warn him of the of smok- allege cigarettes are The Grinnells ing, began smoking and once he he could not unreasonably dangerous both defective and stop ciga- because he became addicted (Sec- section 402A of the Restatement under rettes. ond) Specifically, they Torts. assert that (1) summary cigarettes defectively In judgment, several motions for American’s de- conclusively ingredients ciga- signed American asserted that it de- because found cancer, addiction, disease, of the cause feated least one element of each rettes (2) marketed, ciga- many defectively claims and that of the claims because the Grinnells’ warnings, preempted by packages inadequate In the first contain federal law. rette (3) motion, cig- defectively manufactured American asserted that the Federal because pesticide In his de- Cigarette Labeling Advertising Act of arettes contain residue. death, preempted position for taken one month before his 1965 the Grinnells’ claims proper use of dangers as to the or instruct that had he known testified Grinnell Firestone product question is a of law. nev- a inherent in he would 613; Steel, Motors place. General smoking in the first S.W.2d er have started (Tex. Saenz, 353, 356 Corp. v. 873 S.W.2d Texas, 402A of the Restate section 1993). has a Generally, a manufacturer (Second) governs claims for Torts ment if or should know to warn it knows liability in tort. Firestone Steel Prods. strict of the na potential harm to a user because (Tex. Barajas, v. 927 S.W.2d Co. v. Bristol-Myers Co. product. ture of its Inc., 1996); Affiliates, v. McKisson Sales (Tex.1978). Gonzales, 561 S.W.2d (Tex.1967). 402A 788-89 Section S.W.2d Nevertheless, recognized that this Court has provides: duty to warn when the risks is no there in a any product who defec- one sells particular product are mat with a associated unreasonably dangerous to tive condition knowledge common ordinary ters “within the property his is the user or consumer or to Joseph Seagram & community.” E. liability physical harm there- subject to McGuire, Sons, 814 S.W.2d Inc. v. or consum- by caused to the ultimate user (Tex.1991) legal duty exists (holding that no er, property, his or to of alcohol con the health risks to warn of (a) engaged in the business of the seller is risks are common sumption because such selling product, such a no argues that had knowledge). American (b) reach the expected it is to and does of the risks associated duty to warn Grinnell consumer without substantial user or the dan it is in which sold. change the condition smoking were common gers of began smoking 402A when (Second) Of ToRts Restatement (1965). unreasonably product may A be dan- j i to Restatement section Comments marketing, of a defect gerous because knowledge into incorporate 402A manufacturing. Caterpillar, Inc. design, or “unrea- product is analysis of whether (Tex.1995); Shears, section.1 sonably dangerous” under Jacobs, Co. v. Technical Chem. i, “unreasonably defines which Comment allege The Grinnells 604-05 liability against manu- dangerous,” forecloses cigarettes sold American were dangerous to an facturers unless to each of the unreasonably dangerous due contem- beyond that which would be extent each of types of defect. We address three knowl- ordinary consumer with plated in turn. the Grinnells’ claims community: edge common to the *7 Marketing Defect possibly be made Many products cannot any consumption, entirely safe for all of a failure to warn A defendant’s necessarily involves some risk drug or warnings food dangers product’s potential when over-consump- harm, only from marketing of type of defect. required is a are by is meant 382; ... That is not what Inc., tion. at Lucas Caterpillar, 911 S.W.2d “unreasonably dangerous” this Section. Indus., Inc., 696 S.W.2d v. Texas to an dangerous be article sold must duty to warn of a The existence products widely such distributed "Common recently adopted draft of the Restate final 1. The firearms, tobacco, (Third) Liability beverages, does not Products alcoholic ment Torts: as formulation, "unreasonably dangerous” may swimming pools found to above-ground be use defining prod approach to requisite takes a functional proof but only upon be defective uct defect. Restatement (a), (b), (c)[defective or Products of Torts: conditions in Subsection (Third) Draft, 1997). Liability (Proposed §§ Final manufacture, products warning]. design, If such people liability for harm Section 1 establishes rea- defectively or sold without manufactured are product.” property a "defective caused or danger warnings when such to their as sonable "at product as defective when Section defines appropriate, reasonable alter- warnings or if are distribution, it contains sale or the time of adopted, then designs have been could native defect, design, or is manufacturing is defective selling distribut- liability §§ [for or under 1 and inadequate or instructions because of defective § may product] Id. at attach." ing a defective preclude warnings." does not The Restatement d. cmt. group products: liability any particular for law, beyond judicial notice rule extent that which would be contem- we find pur- plated by ordinary consumer who Compare helpful providing a standard. it, ordinary knowledge chases with the Goode, Wellborn, III M. 33 S. O. & Shar community char- common to the as to its lot, of Evidence Guide to Texas Rules acteristics_ tobacco is not un- Good “high § (Tex.Prac.1988)(requiring 201.2 reasonably dangerous merely indisputability” prerequisite as degree of smoking may harmful; be but effects of notice) judicial with Brune v. Brown containing something mari- tobacco like Corp., Forman 758 S.W.2d 830-31 juana may unreasonably dangerous. be (Tex.App. Corpus Christi writ de — § (Second) 402A Restatement of Toets nied)(“eommon knowledge is information added). (1965)(emphasis j cmt. i Comment upon public generally based known excuses a seller from the to warn about facts”). indisputable dangers generally recog- that are known and Id. at 388 n. 6. nized: In prevent product being order to from Thus, knowledge common is an ex unreasonably dangerous, may the seller be traordinary applies only in lim defense3 required give warning, directions or circumstances. the court in Bruñe ited As container, as to its use.... But a noted, knowledge encompasses only common required respect seller is not to warn with things patently those “so obvious and so well them, products, ingredients or which community generally, known to the so, only dangerous, potentially or dispute question there can be no concern quantity, consumed excess or over a Brune, ing at their existence.” 758 S.W.2d time, long period danger, when the knowledge 830-31. We will find common as potentiality danger, generally is known only a matter of law when the standard set recognized. ... dangers of al- [T]he Seagram out in met. It is not in all is met beverages example.... coholic are an respects here. added).2 j Id. cmt. (1965)(emphasis 402A knowledge, Common in the context of com- example, we For do not find the dan j, i general ments connotes a societal public’s gers cigarettes, of alcohol and or the understanding spe- of the risks inherent in a respective dangers, to awareness of those be products. cific Seagram, or class of Sons, Seagram commensurate. Unlike Seagram 814 S.W.2d we also dispute which did not the health emphasized finding standard use, prolonged Seagram, alcohol knowledge as a of law is a matter industry, including the tobacco Ameri strict holding one. First that the term “com- can, posed actively disputed knowledge” encompasses mon “those facts any began at the time community that are so well known to the as health risk id., beyond dispute,” Indeed, to be we then noted: industry in 1952. con dispute Seagram tinues to risks asking Because this court to cigarettes, determine common as a matter and the addictive nature of before *8 that, although applicable manufacturing 2. We note to this based on a defect or breach of case, 82.004(b). express warranty. § Legislature Id. the Texas has codified com- j ments i and of section 402A of the Restatement. (applicable § Prac. & 82.004 Civ. Rem.Code stated, Tex. 3. As we have whether the risks associated 1, 1993). September cases filed This stat- after knowledge product with a are common is one provides ute that a is manufacturer or seller determining when the ex- factor courts consider (1) product inherently liable if the is unsafe duty knowledge to warn. Common istence of ordinary defense, to be unsafe the consumer is known Seagram, to as a see 814 is referred possessing knowledge 5, common to the communi- product at n. the user has 388 (2) ty, product product, prove duty the is a consumer that seller had a the burden to the tobacco, danger, product’s such as as identified in comment i to warn of a while the (Second) may the Torts. be- section 402A of Restatement seller assert that no such existed of 82.004(a)(1), (2). applies knowledge regarding to all such Id. This section cause of the common defects, marketing danger. design and but not to actions 428 press,4 smoking cigarettes. national the harmful of
Congress, the and even at effects argument Gundling 340, oral the Court in City Chicago, before this case.5 v. 176 Ill. 52 of ongoing “dispute,” 44, (1898) Despite this we are bound (cigarettes N.E. 45 are “deleteri apply knowledge rule that whether has the aff'd, 183, “injurious”), ous” and 177 U.S. 20 community become common is an ob- 633, (1900); 44 725 State v. Nos S.Ct. L.Ed. jective Caterpillar, Inc. determination. See saman, 347, (1920) 715, 107 P. 348 Kan. 193 Shears, 379, v. 383 (dangers of smoking and deleterious effects knowledge); Lig of are common party asserting the common-knowl- Cannon, gett Myers v. Tobacco Co. 132 edge dangers must establish that the defense 419, 1009, Tenn. 1010 (ciga 178 S.W. alcohol, tobacco, other attributable to virtue, being are “possessed rettes of no bad products a matter of knowl- were common inherently”). recently, courts More have edge began using when the consumer the similarly that the acknowledged inherent product. summary judgment Based on the dangers are within record, smoking American that we hold established community’s knowledge. Allgood general smoking com- v. ill-effects common 168, Reynolds Co., monly F.3d known when Grinnell started R.J. Tobacco 80 172 — However, (5th denied, -, Cir.1996), 1952. we also that Ameri- hold cert. U.S. (1996) (“[T]he quali- 300, 136 can not establish that the did addictive 117 S.Ct. L.Ed.2d 218 ty commonly cigarettes was long known when cigarette been began smoking Roysdon community.”); known to v. R.J. (6th Co., 230, Reynolds 849 F.2d 236 Tobacco .Regarding general risks health Cir.1988) (“ ‘[Tjobacco used for has been over smoking, associated with the Tennessee Su years 400 ... its characteristics have preme early held as as that these Court 1898 Knowledge fully explored. also been “generally known.” v. risks were Austin to health smoking is harmful is State, 563, (1898), 305, Tenn. 48 S.W. 101 306 part widespread of the and can be considered sub nom. v. Ten as Austin aff'd modified community.’”); nessee, 179 U.S. S.Ct. 45 L.Ed. Co., Paugh Reynolds Tobacco R.J. (1900). certiorari, On United States 1993) (N.D.Ohio (“Much F.Supp. 228, 231 as Supreme Court observed: alcohol, prod in the case of tobacco users shutting eyes be our to what should [W]e ... in the ucts a consumer choice face made constantly passing before we them were of health common to [have been] risks ignorance to affect an that a the fact ordinary knowledge well before [since effects, [cigarettes’] belief deleterious 1966].”). upon young particularly people, has be- very general, come that communica- Moreover, Surgeon Gen- constantly finding way into tions are their advisory began examining eral’s committee denouncing public press their use as smoking, with risks associated fraught great danger.... already there were more than seven thou- general publications professional sand (emphasis S.Ct. U.S. added). relationship early recognized examining courts circulation be- Other also teen-agers cause targeted rettes are can- See Castano v. American Tobacco cer.”). F.Supp. (E.D.La.1994)(noting that in Congress April hearing before occurring following colloquy 5. The between the major executive officers of the tobacco chief argu- oral Court and counsel at the American’s manufacturers testified that nicotine is not addic ment of this case: tive, Phillip purchased full-page and that Moms following testimony, newspaper ads which agree disagree your COURT: Does client *9 "Phillip part: Morris read in does not believe cigarette dangerous smoking to one’s health. is addictive”); smoking is see Tobacco but agrees is COUNSEL: that there a risk Our client Killer, Smoking Paper Still Claim smoking cigarettes. Executives factor in 21, 1997, ("On Says, April at 3 Rendering dangerous Hous. to one's COURT: health? Chron., 20, Liggett, L & maker of and Chester from a March fields, Ms COUNSEL: There is a risk factor statisti- by agreeing agree smoking standpoint. cal We do settled 22 state lawsuits admitting ciga- lung we don’t and causes cancer because know. addictive label its (1991) (“The 1263, smoking tween and health. N.Y.U. L. Rev. Health Public Dep’t SeRvice, U.S. amount of information available to American of Health and Human Reducing 89-8411, is, SeRvs, dangers smoking of consumers about the Pub. No. the Smoking: been, Consequences staggering.”). and for some while has Health of RepoRt Years of PROGRESS:A of the Sur- only Not does historical evidence illustrate geon (1989). publica- Of these General pre-1952 smoking’s of public’s awareness tions, published nationally articles circulat- effects, experts dangerous but the Grinnells’ magazines dating early ed back to the 1900s of also confirmed that the health hazards informed readers about the ef- deleterious smoking knowledge were Brown, smoking. fects of Is a Tobacco Cru- Ravenholt, smoking. began Dr. an Coming?, sade Oct. Monthly, Atlantic causes, expert on cancer and its testified that (adverse findings at 447 medical science dangers smoking by of well known were smoking brought public have been before the majority people] the 1950s: “I think the [of past thirty years); for the Does Tobacco aware, know, adult, you would have been Literary Tired?, Make One Digest, The reasonably intelligent.” He also testified 15, 1922, Apr. (noting at 27 the effect of that, emerged lung “evidence heavy smoking, light smoking, and nonsmok- producing capability smoking” cancer of and ing efficiency); Hirshberg, on workers’ Truth dangers smoking attributable to Harper’s Tobacco, About Jan. Weekly, extensively published frequently and (consumer linking awareness of claims front-page Dr. news stories the 1950s. cancer, disease, smoking to health bron- Greenberg likewise testified that the decision Norr, pervasive); chitis is Cancer smoking cigarettes to smoke or refrain from Carton, Dee. at 7 Digest, Reader’s personal responsi- is a matter of “individual (examining projecting data and the number bility” in light of the health risks. lung of smoking). future cancer deaths from general We conclude that the health During period, many this same ex- books attributable were com amined the health risks associated with monly known as matter of law smoking argued against ciga- the use of community began smoking. when Grinnell generally Coles, rettes. See The Beauties Shears, Caterpillar, See Inc. v. 911 S.W.2d at Tobacco-Using (1851); and Deformities (common knowledge usually deter Congress: Goff, Petition Prohibit Grow- law). mined as a matter of cannot con We ing Importation (1913); of Tobacco clude, however, specific danger Griscom, Tobacco, The Use of and the Evils knowledge nicotine addiction was common (1868); Pack, Tobacco and Human Efficien- began smoking. when Grinnell cy Addiction is (1918); SCHRUMPF-PlERRON, TOBACCOAND danger apart physical Physical Efficiency from the direct dan (1927); Slocum, About gers because the addictive nature Tobacco Its Deleterious Effects cigarettes multiplies the likelihood of and (1909); (1944); Taylor, Walsh, Don’t Smoke injury, Burning contributes the smoker’s ultimate The Shame of America Outline ease, Gamer, Against in Grinnell’s cancer. See (1924). These books and Nicotine Cigarette Dependency Liability: A Civil published articles before 1952 indicate that Proposal, Modest 53 S. Cal. L.Rev. general dangers were com- (1980) (“[Dependency adds a new di began mon even before Grinnell smoking, greatly mension to for it increases See, smoking. e.g., Majoras, Crist volume, high long the likelihood of term use Smoking Litiga “New” inWave and Health disease, disability, early New?, which leads to Anything Really tion — Is So 54 Tenn. death.”). (1987) (“Even recognized This has Court also prior L. Rev. seriousness of addiction and the need for beginning century, public of this ... danger manufacturers to warn of this in the constantly exposed [was] to innumerable re ports prescription drugs. associating smoking with context of Crocker risks.”); Labs., Twerski, Winthrop Closing Henderson & 432-33 (Tex.1974) Liability (holding drug American Products Frontier: The manufacturer liable (Second) Rejection Liability Defect, Without 66 under Restatement Torts 402B *10 430 drug
for that that misrepresenting “was free and shows and smokeless tobacco addiction”); highly addictive, safe from all of see also psychoac- other cause Inc., Morris, Philip Carlisle v. 805 S.W.2d tive effects ... that these and effects are 498, 1991, (Tex.App. 516 writ de widely accepted in the scientific communi- — Austin nied) (“Indeed, ciga the failure to warn of Beahm, ty.”); Coyne see Inc. v. United rettes’ nature could be addictive the essence Admin., Drug States 958 F.Supp. Food and plaintiffs complaint.”). of a acknowledge We (M.D.N.C.1997) (upholding 1060 juris- FDA’s support that proposition some authorities the impose diction to access restrictions and la- community that of the some members associ beling requirements products). on tobacco smoking cigarettes ated with addiction earli simply But we that cannot assume common Louis, City in century. er Ploch v. this St. of knowledge general health of the risks of to- (1940) 1069, 1020, Mo. naturally bacco use includes common knowl- (cigarettes properties” have “harmful it and Indeed, edge quality. of tobacco’s addictive is produces that nicotine Kessler, FDA, as David former head of the addicts”); Wiley, “tobacco The Little White pointed has out: Slaver, 1916, at 91 Housekeeping, Jan. Good 1980, FDA Before last its considered (people can become “slaves” the jurisdiction products, over tobacco no ma- cigarette smoking habit and can “shorten jor public organization health had deter- lives”). their mined was an drug. that nicotine addictive spoke The Surgeon General the addic- Today, however, major public all tive nature of tobacco the most recent and organizations in the United States and comprehensive report subject in 1988. expertise drug abroad tobacco or with Dep’t Service, U.S. Public Health of recognize addiction that the nicotine deliv- 8406, SeRvs., Health and Human Pub. no. by cigarettes ered and smokeless tobacco Smoking: Consequences The Health is addictive. Report A Nicotine Addiction: of the SuR- al., Legal Kessler et and Basis geon (1988) (hereafter Scientific Nicotine GENERAL FDA’s Assertion Jurisdiction over report, In that Surgeon Addiction). the Tobacco, Cigarettes and 277 Jama Smokeless (1) cigarettes General concluded that: and (1997) added). 405, (emphasis The FDA (2) addicting, other of tobacco are nico- forms jurisdiction based 1996 assertion of on “a tine is drug in tobacco causes addic- epidemiologic laboratory wealth of and data tion, (3) pharmacologic and behavior- establishing display tobacco users processes al that determine tobacco addiction symptoms clinical of addiction and that nico- are similar to those that determine addiction tine has of other the characteristics addictive drugs as heroin and Id. at such cocaine. Thus, drugs.” general dangers Id. unlike recently, Drug in.6 the Food More Ad- smoking, associated as late as 1988 prod- ministration has concluded tobacco certainly danger of addiction Regulations Restricting ucts are addictive. widely smoking cigarettes from Cigarettes Sale and Distribution community recognized known and Protect Smokeless Tobacco to Children and Reg. or, Adolescents, general, particularly, by children or ado- 61 Fed. 44555-56 (1996) (to lescents. at vi. The pts. be codified C.F.R. Addiction Nicotine 897) (“[T]he 804, 807, 820, explained FDA has that because evidence tobacco’s symptoms Surgeon advisory General’s com- concomitant withdrawal when not Scharf, Deeply: The tobacco as a habit used. See Breathe Tort mittee defined chronic use Battery, See Smokers' 32 Hous. L. Rev. 636 n. 78 rather than an addiction. Ser- Public Health (1995); Dep’t Dep’t U.S. U.S. & vice, Health, Welfare, Serv., Education, of Health Public Health 89-8411, Report Pub. No. No. Smoking Reducing Servs., Pub. and Health: of the Human Advisory SMOKING: YEARS Surgeon OF OF PROG- Committee General CONSEQUENCES HEALTH of the (1964). (1989). Report drug A is Surgeon General Service RESS. A Public Health above, (1) drug psy- generally "[s]cientists addictive if: As noted in the field of considered it is nicotine, (has agree principal per- addiction effects on now choactive intrinsic mood (initiates formance), (2) reinforcing pharmacologic agent that is common all forms it is search- tobacco, addicting powerfully drug.” ing that is determined a need for the behavior nico- substance), compulsive triggers tine addiction at i. use and
431
effects,
only way
prevent
addictive
The
assert
that American
Grinnells
to warn users about
ensuing
prevent-
disease
death is
chil- breached
product’s
nature because before
addictive
starting
dren and adolescents from
to use
1, 1966,
product’s packages
January
con
people
“Most
who
tobacco:
suffer the ad-
warnings.
no
A manufacturer is re
tained
consequences
using cigarettes
verse health
of
quired
give
adequate warning
an
if it
begin
and smokeless tobacco
their use before
potential
know that
harm
knows or should
18,
they
age
age
they
reach
may
product.
result from use of the
Bristol-
for,
to,
prepared
equipped
are not
make a
Gonzales,
Myers
v.
561 S.W.2d
804
Co.
that,
many,
lifelong
decision
will have
(Tex.1978).
warning,
In the absence of a
a
Reg.
consequences.” Regulations,
at
Fed.
presumption
rebuttable
arises that the “user
warnings
would have read and heeded such
community’s knowledge
Because the
con-
Bros.,
Magro Ragsdale
and instructions.”
v.
cerning
danger
of nicotine addiction asso-
(Tex.1986)
Inc.,
(citing
S.W.2d
cigarettes
beyond dispute
ciated with
was not
Jacobs,
Technical Chem. Co. v.
480 S.W.2d
Seagram
finding
standard for
(Tex.1972)).
may
A
manufacturer
knowledge
as a matter of law has
presumption
rebut the
with evidence that the
not
agree
been met. We
with the court in
plaintiff
warnings
did not heed whatever
Rogers
Reynolds
v. R.J.
Tobacco Co.:
given,
any
not have
would
heeded
proposed warnings.
Magro,
See
judicially noticing
There is no basis for our
834;
Corp.
at
see also General Motors
ordinary
knowledge
what the
consumer’s
Saenz,
358-59
concerning
qualities
ciga-
the addictive
The
assert
that when Grinnell
Grinnells
may
plaintiff]
rettes
have been when [the
started
1952 he did not know and
began smoking in 1940. The state of
nothing
any
had heard
about
risk of addiction
community
attributable to the
smoking.
associated with
fur-
Grinnells
consuming cigarettes
of individuals
has
ther assert that American’s failure to warn of
changed over time and will
continue
do
the addictive nature of
caused
Surgeon
so. It was not until 1988 that the
Grinnell’s eventual death because Grinnell
published
report
General
informing
testified that had he known what he later
cigarettes.
the addictive nature of
learned, he would never have started smok-
557 N.E.2d
1054 (Ind.Ct.App.1990).7
rebuttal,
ing.
testimony
American cites
Accordingly, we hold that American did not
1960s,
that in the late 1950s and the
establish as a
danger
matter
law that the
smoking despite warnings from his
continued
of addiction associated with
father, coaches, and friends.
commonly known in 1952.
most,
At
evidence relied
Because we conclude that American did
people
American establishes
some
conclusively
not
danger
establish that the
general dangers
warned Grinnell about the
addiction to nicotine
knowledge,
was common
smoking.
conclusively
It
establish
does
may
the Grinnells
maintain their strict liabili-
ciga
had Grinnell been warned
ty marketing
defect claims to the extent
began
rettes were
he
smok
addictive before
qualities
ciga-
based on the addictive
ing he
would
refused to follow the warn
rettes,
if no other
ings.
deposition
defenses defeat
those
Grinnell testified
his
claims.
if he had known of the
associated
Thus,
i,
Also,
regarding
Rogers
dangerous....
design
comment
court
defect which
noted:
addictive than it
renders
more
The reference in
comment i to tobacco ...
could be or addictive when it need not be
a matter
does
as
of law remove all claims
may
cigarette unreasonably
all
render the
products
opera-
of defective tobacco
from the
dangerous
conjunction
with its harmful
tion of 402A.... [Footnote 8]
qualities.
Failing
[Footnote 8:]
to warn the consum-
8;
American did not establish Turner, anticipated user’s “the stated from danger of addiction specific in the dangers inherent of the awareness com- knowledge common to the smoking was avoidability product and their Therefore, that the Grin- munity. we hold con the obvious public knowledge of general claim survives to the marketing defect nells’ expectations “the product,” and dition of the allegation that the it is based on the extent consumer,” two fac ordinary are but of the rendered nature addictive jury when determin to consider tors for unreasonably danger- products American’s defectively de product ing whether ous, preempted to the extent it is attempt invoke the signed. American’s law.8 federal actually an at common-knowledge is defense Design Defect de “open and obvious tempt to invoke rule,” which this “patent danger fense” design a safe design cases: rejected in defect has Court by law.” McKis obligation imposed is “an the view that are of Inc., A number of courts Affiliates, son v. Sales which design defects risks are not obvious a seller has Whether See, Gray, e.g., is, be remedied. prod must duty, whether a this breached law); Mississippi (applying at 870 F.2d dangerous, question is a unreasonably uct is 764 F.2d Motor v. Ford Delvaux jury. Turner General See of fact for Cir.1985) (7th (Tex. (applying Wisconsin Corp., 584 S.W.2d Motors Inc., 270 law); Craft, S.C. Young v. Tide 1979). product is determining whether a (1978). However, 453, 242 S.E.2d conclude designed, jury must defectively Defense, II, Preemption 8. See Part Federal infra. Q: you your opin- liability
our Court has
for a
It didn’t matter to
held
changed
the cause
design
may attach even if the defect
ion
not have
as to
defect
would
brand,
Turner,
cancer,
regardless of the
apparent.
is
Turner,
lifetime,
availability
during
that “the
of a
A: Not
his
no.
we held
product
substitute
which would meet
Ultimately,
essentially
the Grinnells
same need and not be unsafe or unreason-
reasonably
that no
concede
safer alternatives
ably expensive,”
juries
was one factor for
exist,
argue
but
that all
are defec
determining
prod-
consider when
whether a
unreasonably dangerous
tive and
nonethel
defectively designed.
uct was
We reaffirmed
conclusively
ess.10 Because American
holding Caterpillar,
by
this
Inc. v. Shears
proved
reasonably
that no
safer alternative
stating
“if
that
there are no safer alterna-
design
cigarettes,
exists for its
we hold that
tives,
product
a
unreasonably danger-
is not
summary judgment
proper
on all of the
ous as a matter of law.”
The Grinnells assert that American’s
We turn next to the Grinnells’ strict liabili-
reasonably
ty
rettes could have been
saf-
manufacturing
made
claim based on a
defect.
filtration,
by
by reducing
prod-
er
the amount
that
The Grinnells assert
American’s
tobacco, tar, nicotine,
defectively
in them.
and toxins
ucts were
manufactured because
In making
argument
reasonably
its
that no
carcinogens
contained
and other toxic
exists,
chemicals,
design
including pesticide
safer alternative
American re-
Dur-
residue.
testimony
ing discovery,
lies on the
of the Grinnells’ ex-
the Grinnells obtained internal
Stevens,
perts,
Greenberg,
showing
fumigated
Drs.
Ginzel. documents
American
experts
These
testified
Grinnell would its Turkish tobacco with Aeritet
a chemi-
developed
regardless
composed
acrylonitrile
cancer and died
cal
and carbon tet-
filters,
tar,
whether
lower
or less tobacco had
rachloride. American uses Turkish tobacco
Specifically,
been
Greenberg
cigarettes.
used.
Dr.
testi-
in all of its
American
noting
gov-
fied:
circulated a memorandum
new
case,
Grossman,
Although
applicable
present
generally
Categorical
not
courts. See
Legislature
Closed,
Texas
has codified the
Liability: Why
"safer alterna-
Kept
the Gates Should be
requirement.
tive”
§
Civ.
Rem.Code
(1995)(noting
36 S. Tex L. Rev.
Tex.
Prac. (safer
design
82.005
alternative
must be shown
advocated,
categorical liability has been
unsuc-
by preponderance
design
of the evidence in
de-
cessfully,
beverages, handguns for alcoholic
case).
fect
Twerski,
cigarettes);
Closing
Henderson &
Liability
Rejec-
American Products
Frontier: The
10. By arguing
liability
even in the absence of
Liability
Defect,
tion
Without
66 N.Y.U. L. Rev.
reasonably
design,
a
safer alternative
the Grin-
(1991)(courts
should not abandon
effectively propose
system
adopt
we
a
nells
risk/utility
categorical
traditional
exclusion).
test in favor of
liability
categorical
respect
cigarettes.
Categorical liability
only
an unworkable
is
solution,
position repeatedly rejected
but also a
universally disregarded
cigarettes,
from
regulations requiring
eminent
all materials
containing acrylonitrile
industry
to be
with a
not excuse their
affixed
an entire
does
Likewise,
warning
Hooper,
“Cancer Hazard”
label.
omission. See T.J.
F.2d
(2d
allege
Cir.),
denied,
that American knew that
Grinnells
cert.
287 U.S.
S.Ct.
(1932).
methyl
pesticide
bromide
residue remained
Although pesticide
L.Ed.
fumigation.
in its tobacco after
The Grin-
may
many
if not all
residue
be found
potentially cancerous
alleged
nells
that this
ingredient
American
cigarettes, it
pesticide residue contributed to Grinnell’s
incorporate
cigarettes.
into its
intended to
resulting
cancer and
death.
Analyzed
light,
presence
pesti
this
defect,
manufacturing
cide residue could be a
law,
plaintiff
Texas
a
has
Under
Therefore,
design
American
not a
defect.
manufacturing
defect claim when finished
conclusively negate
of a
did not
the existence
deviates,
in terms of its construction
cigarettes.
defect
specifications
planned
quality,
from the
output
in a manner that renders
unreason
Alternatively, American contends
Pool,
ably dangerous. See Ford Motor Co.
*14
any alleged manufacturing
that
defect ren
(Tex.App.
881
688 S.W.2d
— Texarkana
unreasonably
dering
dangerous
its
1985),
part
part
in
and rev’d in
on other
aff'd
injuries.
plaintiff
A
did not cause Grinnell’s
(Tex.1986);
see also
grounds, 715 S.W.2d
“a causal connection between
must establish
Indus., Inc.,
Lucas v. Texas
S.W.2d
plaintiffs
condition and the
[the defective]
(Tex.1984); Morgan Compugraphic
377-78
Lucas,
injuries
at
damages.”
S.W.2d
(Tex.1984);
Corp., 675 S.W.2d
732-33
(quoting Armstrong
Rubber Co. v. Ur
Darryl v. Ford Motor
440 S.W.2d
(Tex.1978));
quidez,
see
570 S.W.2d
common-knowledge
The
de
support
Morgan,
at
675 S.W.2d
732-33.
apply
type
to this
of claim
fense does not
point,
argues
American
that the Grin
this
anticipate a manu
because a user does not
presented
causation on
nells
no evidence of
type
a
facturing defect. This
of defect is
manufacturing
their
claim. American
defect
Pool,
planned output. See
deviation from the
correctly asserts that none of the Grinnells’
881;
see also
Tex.
Prac. &
Civ.
experts
presence
pesti
that the
testified
82.004(b).
§
Rem.Code
cide residue caused or contributed
Grin
American, conceding
cigarettes
that
The
development
nell’s
cancer.
residue, argues that sum-
pesticide
contain
(1) they
experts testified that:
Grinnells’
proper
ciga-
all
mary judgment was
because
any pesticide
were unaware of
residue
tobacco
fumigate
manufacturers
their
rette
(2)
opinions that
cigarettes;
their
American’s
inev-
type
pesticide,
and residue
some
smok
developed lung cancer from
Thus,
itably
fumigation.
remains
after
smok
cigarettes
generic
based on
ing
were
that the Grinnells’ claims
American concludes
ing
not isolate individual
studies
did
presence
pesticide residue
based
cigarettes and their individual ef
brands of
masquerad-
actually design defect claims
fects;
opinions
their
would be
manufacturing defect claims.
ing as
pesticide residue
regardless of whether
same
facts,
undisputed
According to the
present
cigarettes.
in American’s
incidentally, yet normally,
residue is
pesticide
judgment
summary
American mistakes its
fumigated.
The
found in tobacco after
summary judgment
it is not
burden. On
is not an anom
presence
pesticide
residue
pro-
plaintiff nonmovant to
upon
incumbent
only
cigarettes
to the
Grin
aly attributable
allegations
supporting the
evidence
duce
Nevertheless,
that all
the fact
nell smoked.
rather,
pleadings;
the defendant
made
her
pesticide resi
cigarettes potentially contain
one
conclusively negate at least
movant must
manu
the Grinnells’
due does not transform
action.
plaintiff’s
cause of
element of
design
defect
facturing defect claim into
Dallas,
Boys
Greater
common-knowledge
Clubs
subject
de
claim
Here,
pesticide
proving
without
precautions
certain
Simply
fense.
cancer in
does not cause
residue
manufacturing
technolo
improvements
humans,
its bur-
attempts to meet
American
pesticide residue
gy, which could eliminate
consumption.
cigarettes were safe
failed
that its
by focusing on what the Grinnells
den
gener-
to the
this claim relates
conclusively negate To the extent
prove. This does not
summary judg-
cigarettes,
risks of
al health
ex-
element of causation. The Grinnells’
However,
explained
as we
proper.
ment was
testimony
perts’
merely illustrates
conclusively
above,
estab-
did not
American
caused
experts’ conclusions
addiction was
danger
of nicotine
lish that
dependent on the
cancer were not
Grinnell’s
The common-
knowledge
residue,
pesti-
pesticide
not that
presence of
preclude
does
defense
to or
could not have contributed
cide residue
warranty claims to the ex-
implied
Grinnells’
that sum-
cancer. We hold
caused Grinnell’s
quality of
to the addictive
they relate
tent
improper on the manu-
mary judgment was
cigarettes.
claim.
facturing defect
that all of
alleges
further
American
Warranty
Implied
B.
warranty
remaining implied
the Grinnells’
Next,
im
we consider the Grinnells’
by limitations. Section
are barred
claims
plied warranty claims.
hold that
2.725(b)
We
Business and Com
of the Texas
common-knowledge
applies and bars
defense
four-year limitations
provides a
merce Code
to the extent
relate to the
these claims
warranty
period for all
claims.
Tex. Bus. &
general
cigarettes.
2.725(b).
health risks of
Grin
Regarding
the time of
Com.Code
warranty
from the
implied
claims stem
nells’
accrual,
“[i]mplied warranties relate
impliedly
allegation
characteristics,
that American
warranted
condition, kind,
suitability,
sale; thus,
merchantable and fit
that its
goods at the time of
*15
etc. of sold
purpose.
intended
See
for their
implied warran
of limitations on
Tex.
the statute
Bus.
allege
§
that
2.314. The Grinnells
sale.”
from the date of the
ties runs
Com.Code
Safe
cigarettes are neither merchanta
Stores,
American’s
Corp., 710
way
Inc. v. Certainteed
purpose
fit
(Tex.1986).
ble nor
for their intended
four-year
S.W.2d
consumption,
not safe for human
are
implied
on
warranties
statute of limitations
user,
injury
cause
and are addictive.
delivery, not
run at the time of
began to
implied warranty
representation
An
is a
cancer. Ac
he had
when Grinnell discovered
suitability
a
implied quality
about
predi
implied warranty claims
cordingly, the
implies
imports into
product that the law
and
cigarettes
upon
nature of
cated
the addictive
contract, “in
of all facts
circum
a
view
and
years
four
before Grin
that arose within
transaction,
including
attending
stances
by limitations
suit are not barred
nell filed
property,
terms of the
the nature of the
Accordingly, we
may be maintained.
agreement,
usages.”
and trade
Donelson v.
warranty
surviving implied
these
remand
796, 799
Fairmont Foods
252 S.W.2d
claims.
n.r.e.).
(Tex.Civ.App.
writ ref'd
— Waco
Concealment,
Fraud, Fraudulent
C.
community about
Knowledge common to the
Negligent Misrepresentation,
that must be
a certain
is also a factor
Warranty
Express
implied
deciding whether an
considered when
Allgood,
at 172.
warranty exists. See
80 F.3d
claims for
turn next to the Grinnells’
We
con-
misrepresentation, fraudulent
fraudulent
warranty contrary to
implied
An
cealment,
misrepresentation, and
negligent
community’s
cannot
warranty.
claims are based
express
These
§ 2.313 emt.
exist. Cf.
Tex. Bus. & Com.Code
misrepresentations in American’s
alleged
dangers of
general
1. Because
allege that
The Grinnells
advertisements.
commonly
by the com
cigarettes known
risks of
revealed the health
American had
safety arises with
munity,
expectation
no
not deceived
cigarettes, and had
smoking
pur
cigarettes
they are
respect
when
representations
by making false
com
established the
chased. As American
have
never would
contrary, Grinnell
general
mon-knowledge
defense
smoking.
started
a
as
health risks associated
con-
claim
the Grinnells
law,
conclusively negated the
The documents
it also
matter of
(1) a 1953
misrepresentations include
impliedly
warranted
tained
asserting that
claims
(Tex.1992).
Hahn,
press
by
Similarly,
release
Paul
then American’s
when circum
(2)
president,
promotional
a
“A
impose upon party
speak
item entitled
stances
”
silent,
Cigarette
Frank Statement to
Smokers
re-
party
and the
remains
the silence it
Industry
leased
the Tobacco
Research
representation. Spoljaric
self can be a false
Committee,
Tours, Inc.,
of which American was a mem-
v. Percival
ber,
“Why (Tex.1986);
an advertisement entitled
v. National Resort
Smith
Com
(Tex.
All
Dropping
munities,
We’re
The New York Times.”
Inc., 585 S.W.2d
three of these
1979).
documents stated that Ameri-
misrepresen
as with affirmative
Just
industry
can and the tobacco
still believed
tations,
allegedly
party
must
defrauded
injurious
that
was not
to health and
reasonably
relied on the silence to his
yet proved
that no one had
that
cancer
171;
Allgood, 80 F.3d at
detriment. See
any
being
directly
human
traceable to
Likewise,
Spoljaric,
neg
D. contend consider The Grinnells We next the Grinnells’ manufacturers, manufacture, American, designj cigarette negligent claims for other 438 groups conspired
and tobacco trade
recognized
to coun
no court has
these sections as
suppress
ter and
alleged
evidence about the
creating viable claims in Texas. See Ells
cigarettes.
harmful effects of
Allegations of
Co.,
Bishop Jewelry
worth v.
& Loan
742
conspiracy are not actionable
un
absent an
533,
1987,
(Tex.App.
S.W.2d
535-36
— Dallas
derlying overt
purpose.
unlawful act or
denied);
Co.,
Grogan
writ
Robertson v.
Inv.
Firestone
Barajas,
Steel Prods. Co. v.
927
678,
1986,
(Tex.App.
— Dallas
(Tex.1996); Massey
S.W.2d
v. Arm
writ). Moreover,
no
products
claims for
lia
Co.,
co
Steel
bility
implicating
and actions
consumer mar
light
In
of our conclusion that the trial court
keting
logical
are not within
purview
properly granted summary judgment on all
abnormally dangerous activity
standard.
of the Grinnells’ other claims related to fraud
Corp.,
See Perkins v. F.I.E.
762 F.2d
concealment, summary
judgment on the
(5th Cir.1985);
n. 43
Maguire,
conspiracy
proper.
claim was
568-69;
N.W.2d at
(seoond)
Restatement
§ 519
adopt
cmt. d. We decline to
torts
F. Restatement Claims
321, 389, 519,
sections
and 520 of the Restate
allege
Grinnells
that American violat-
Accordingly,
ment
in this case.
summary
321, 389, 519,
ed sections
and 520 of the
judgment on
proper.
these claims was
(Second)
(1)
Restatement
failing
Torts
to take
prevent
remedial measures to
harm
Preemption
II. Federal
Defense
products
caused
after the
(2)
placed
commerce,
in the stream of
finally
We turn
to the claims American
wrongfully assuming that consumers would
alleges
preempted by
federal law.
In
adequate warnings
heed
pack-
1965, Congress
Ciga-
enacted the Federal
ages, and
engaging
an ultra hazardous
Labeling
Act,
rette
Advertising
Pub.L.
activity by designing, manufacturing, and
89-92,
No.
79 Stat.
and in
selling cigarettes
inherently
that were
dan-
by enacting
amended the 1965Act
the Public
gerous.
summary
We hold that
judgment
Act,
Cigarette Smoking
Health
Pub.L. No.
proper
on these claims.
91-222,
Acts,
84 Stat. 87. Both
codified at 15
This
recognized
Court has not
1331-1340,
§§
specify
warnings
U.S.C.
claims based on Restatement sections 321 cigarette
place
manufacturer must
on its
(duty
prevent
prior
to act to
risk once
con
packages and advertisements. Both Acts
(liabili
duct is
dangerous)
found to be
or 389
effectively prevent
regu-
also
the states from
ty
supplying
dangerous product
known
manufacture,
lating
design,
marketing,
injury
results
if a warning
even
has been
cigarettes.
and sale of
given).
particularly
These sections are
ill-
application
suited for
essentially
to what are
Supreme
The United States
Court consid-
products liability
they impose
claims because
preemptive
ered the
effect of the Acts in
liability even
pro
when the manufacturer
Inc.,
Cipollone
Liggett Group,
505 U.S.
adequate warnings.
vides
Maguire
See
v. 504,
(1992).
S.Ct.
L.Ed.2d 407
Brewing
Pabst
387 N.W.2d
568-72
case,
Supreme
Court held that
(Iowa 1986). Moreover,
whether a
Cigarette Labeling
the Federal
and Advertis-
*18
dangerous is determined when it leaves the
ing
precludes
only
Act of 1965
the states
manufacturer’s hands and enters the stream
imposing
labeling require-
from
their own
commerce; subsequent
of
acts have no bear
manufacturers,
Cipollone,
ments on
ing on
Turner
the issue.
v. General Motors
518-20,
2618-19,
112
505 U.S. at
S.Ct. at
but
Corp., 584 S.W.2d
848
Cigarette Smoking
Public
the
Health
predicated
preempts
Act of 1969
all claims
on
The Grinnells also assert claims
prohibition
“requirement
or
based on
based on sections 519 and 520 of the Restate
imposed
and health ...
under State
allege
ment and
that American should be
respect
advertising
pro-
law with
to ...
or
for “[carrying]
abnormally
liable
on an
dan
520-24,
Cipollone,
gerous activity.” Although
of motion.”
439 all, below, some, not explain As but Cigarette we Because the Public Health preempted by are the Act the claims Smoking Act took effect the Grinnells’ only they on activities aris on preempts claims based Act are based 1969 to the extent ing after the date of the Act. Claims effective post-1969 acts or omissions. Act
brought after the effective date
the
preempted
are
category of
claims
The first
they
preempted provided
based
are not
are
allegation
American
the
those based on
Cipol
pre-1969
Specifically, in
on
activities.
warnings or
provided different
should have
Act
lone the Court held that
by
warnings
to
mandated
in addition
those
First,
preempts
types
two
of claims.
concealed
or that
otherwise
Act
to
preempts
1969 Act
failure
warn claims
dangers
smoking.
on
Claims based
allegations
post-1969
on
advertis
based
allegations
strict
warn
include
failure to
in
promotional materials should have
ing or
warn,
failure to
liability
negligent
failure
524-25, 112
warnings.
Id. at
cluded different
testing,
fraudulent
negligent
warn
and
and
Second,
at 2621-22.
the 1969 Act
S.Ct.
concealment.
misrepresentations
preempts claims based on
federally
designed to neutralize the effect
liabil
Regarding the Grinnells’ strict
warnings
cigarette packages.
mandated
on
claims,
ity
both
negligent
and
failure warn
type
at
at 2623.
Id.
S.Ct.
This
to ade
upon
are
American’s failure
based
prohibitions
claim stems from state-law
on
smoking on
quately warn of the
in advertising
statements
that tend to lessen
advertisements,
products’ packages,
its
impact
warnings
is the
federal
promotional materials be
through
other
requirement
warnings
converse of a
be
imposition
fore and
of the federal
after
included
Id.
advertisements.
The
warnings.
allega
based on factual
Claims
preempts
Act
claims
neutralization
advertising
post-1969
tions that American’s
inextricably
claims
to a
these
are
related
in
promotional
materials “should have
527-28,
theory.
failure to warn
Id. at
stated,
additional,
clearly
more
cluded
or
at
S.Ct.
2623-24.
warnings”
preempted. Cipollone, 505
are
The Court
that claims
also held
related
524-25, 112
at
at 2621.
U.S.
S.Ct.
impinge
and health that do not
on
advertising
promotion
preempted.
or
are not
testing
negligent
The Grinnells’
First, negligent testing and
claims
research
preempted.
1969 Act
claim is also
The
preempted, provided they
are not
are
preempts
testing
to the ex
negligent
claims
promotion.
to advertising
related
or
Id. at
they
advertising
pro
tent
related to
are
524-25,
Second,
at 2621-22.
S.Ct.
case,
negli
motion. Id. In this
Grinnells’
express warranty
breach of
claims are not
gent testing
inextricably
claim is
intertwined
warranty
preempted even if the
included
advertising
promotional
materials
advertising materials because the terms of
allege only that Ameri
because the Grinnells
warrantor,
warranty
imposed
products
its
to deter
can should have tested
526-27, 112
not state law.
Id. at
S.Ct.
dangerous characteristics about
mine the
Third,
Act
2622-23.
the 1969
does
consum
which American should
warned
preempt
concealment
claims
fraudulent
preempts
1969 Act
strict
ers. Because the
on a
to disclose material
based
state-law
failure
claims
liability
negligent
to warn
advertising
through
facts
channels other than
rely
post-1969
in so far
on
advertis
as
promotion.
Id. at
S.Ct. at 2623.
materials,
has
ing
promotional
American
Fourth, misrepresentation claims based on
duty,
federally
mandated
no
other than
fact
false statements of material
made
dangers.
negli
duty,
warn
advertising,
that are
claims
based
gent testing
claim asserted
the Grinnells
deceive,
general duty
preempt
are not
not to
depends
liability
failure to
necessarily
528-29,
Id. at
ed.
S.Ct.
2623-24.
preempted.
*19
warn
is therefore
and
Last,
asserting conspiracy
claims
misre
fraudulent concealment claims
preempted,
present material facts are not
they
prem
are
preempted
are
too
provided
misrepresentation
a claim for
can
infor-
530, 112
failure to
at
S.Ct. at 2624-
ised on American’s
disclose
be maintained.
Id.
regarding
dangers
mation
the
cigarettes.
federally
warning
effect of
mandated
labels”
essentially
This claim is
a variation on
through
the
advertising
promotion
and
are
Grinnells’ failure to warn claim because it is
preempted.
527-28,
Id. at
places plaintiffs’ no recovery. such limits on I ‡ ‡ agree IWhile with the Court’s conclusion says expectation Court that “no “general that the cigarettes health risks” of safety respect time, arises with commonly have been known for some I purchased”. I agree, Ante at 485. disagree aspects with several of the Court’s I why but do not understand that fact is not reasoning. present
fatal
litigation.
Like Justice
outset,
At the
the Court retreats from our
I would affirm the district court’s
Enoch,
opinion
Joseph
Seagram
unanimous
E.
summary judgment
plaintiffs’
on all
claims.
McGuire,
Sons v.
The Court
Stomach
McGuire
weight
Low
applicability
Coronary
because it involved alco
heart disease?
birth
limited
product.
finds
the risk of
mortality?
hol as the
The Court
infant
What about
*22
contraceptives?
inapposite
taking
because the distiller did
oral
McGuire
in women
stroke
dispute
prolonged
“general
health
not
the
risks of
those
health
Are these risks within
logic
consumption.
alcohol
The Court’s own
holds
today
the Court
smoking
of
that
risks”
must,
acknowledges,
community
falters because it
as
as
in the
commonly known
are so
depend on
knowledge
that
not
common
does
I
beyond
King James
dispute? Since
to be
beliefs,
subjective
parties’
knowledge
the
smoking as “a
England first condemned
of
“objective
951
but
is
determination.”
the
eye,
the
hateful to
custom loathsome to
Moreover,
at 428.
the
ultimate
Court
brain,
nose,
dangerous
harmful to the
[and]
alcohol,
ly
risks
concludes that like
the health
smoking
lungs,”
have known that
we
smoking
in
cigarettes
of
were so well known
I,
cigarettes is
for us. James
Counter-
bad
beyond
community
dispute
the
as to be
(London 1604), reprinted
blaste
Tobacco
reality,
in
began
1952.
(New
1969).
Capo
York
The
by Da
Press
distinguishing
is
for
be
there
little basis
very slippery
a
a
begins
down
Court
descent
in
products
tween alcohol and tobacco
this
parse
as
slope by attempting to
out addiction
(Second)
context. See Restatement
of
specific smoking-related
separate
a
(1965);
j
Allgood
cmt.
also
Torts,
402A
see
giving
to those
health risk without
definition
Co.,
Reynolds
v. R.J.
Tobacco
80 F.3d
the
knowl-
risks it deems are within
common
Cir.1996)
(5th
McGuire,
the
(following
172
edge.
no
of the dan
defendant had
warn
Moreover,
the Court’s determination
gers
smoking); Roysdon
Reynolds
of
v. R.J.
out one
risk conflicts
single
particular
Co.,
Tobacco
F.Supp.
Shears,
analysis
defect though “[a]ccording even
undisputed facts, pesticide residue is inciden
tally, yet normally, found in tobacco after it
fumigated.”
persuaded pesticide that the claim inis fact a
manufacturing defect claim. The Court a negligence cites case for the LLOYDS, Petitioner, STATE FARM proposition that the industry entire tobacco guilty can be of the same “manufacturing pesticides present defect” are “in many if NICOLAU, Respondents. Ioan and Liana if, cigarettes” not all presumably, no one incorporate” “intend[ed] them into the No. 94-0287. product. Id. at (citing Hooper, T.J. (2nd Cir.), denied,
F.2d
cert.
Supreme
Court
Texas.
(1932)).
U.S.
53 S.Ct.
ment cigarettes demonstrated that the planned output.
did not deviate from Ac
cordingly, pesticide design claim is a
defect claim. For the reasons articulated part opinion,
the Court I.A.2 of its I would summary judgment
hold that proper was claims,
all design including defect those relat presence pesticides
ed in Ameri products.
can’s it did harm Glenn Crocker he Court does not find here that Indeed, people, perhaps appreciable one "good long of those and useful.” number, susceptible commonly who was to addiction or to be harmful when been known used dependency upon drug." Id. at 432. The in the manner are intended to be used.