Lead Opinion
Tоbacco-related illnesses are a leading cause of death in this state and worldwide, and these debilitating illnesses have imposed enormous costs on tobacco users, their families, and society. (See, e.g., Health & Saf. Code, § 104350, subd. (a).) Although the risk of illness and death from tobacco use has become increasingly well known in recent decades, tobacco consumption continues to be widespread, at least in part because tobacco contains nicotine, a substance the Surgeon General of the United States has determined to be addictive. (U.S. Surgeon Gen. Rep., The Health Consequences of Smoking: Nicotine Addiction (1988) <www.cdc.gov/tobacco/sgr_1988.htm> [as of Aug. 5, 2002].) In 1987, the California Legislature enacted former section 1714.45 of California’s Civil Code
In the companion case of Myers v. Philip Morris Companies, Inc. (2002)
Here, we are asked to decide what forms of conduct by tobacco companies during the 10-year immunity period come within the protection conferred by the Immunity Statute. The Court of Appeal held that, as applied to liability for injuries caused by tobacco products, the Immunity Statute covers all conduct by tobacco companies acting as manufacturers or sellers of tobacco
I
Plaintiff Edwin Brigham smoked cigarettes from 1950 until 1996, when he was diagnosed with lung cancer. He sued defendants R.J. Reynolds Tobacco Company and Brown & Williamson Tobacco Corporation seeking personal injury damages on theories of negligence, product liability, and fraud. Defendants demurred, citing the Immunity Statute as a bar to all of plaintiffs causes of action. The trial court sustained defendants’ demurrer but granted plaintiff leave to amend the complaint.
When defendants thereafter demurred to plaintiffs first amended complaint, the trial court sustained the demurrer and dismissed plaintiffs lawsuit against defendants. On plaintiffs appeal, the Court of Appeal affirmed.
II
At issue here is what types or categories of conduct by tobacco companies fall within the immunity given to them by the Immunity Statute, which was in effect from January 1, 1988, until December 31, 1997. The statute specifies that the immunity it gives to manufacturers and sellers of specified inherently unsafe products, including tobacco, applies in product liability actions. (Former § 1714.45, subd. (a), Stats. 1987, ch. 1498, § 3, pp. 5778-5779.) The statute defines a product liability action as “any action for injury or death caused by a product, except that the term does not include an action based on a manufacturing defect or breach of an express warranty.”
Additional limitations on the scope of the immunity may be deduced from the history and purpose of the Immunity Statute, which we examined in detail in Richards v. Owens-Illinois, Inc. (1997)
We now apply this understanding of the purpose and scope of the Immunity Statute to the allegations of plaintiffs first amended complaint, which seeks damages from defendant tobacco companies for plaintiffs lung cancer, which was diagnosed in October 1996. At that time, plaintiff had smoked cigarettes regularly since 1950. His complaint alleged causes of action for negligence, product liability, and various theories of fraud, based, in part at least, on defendants’ сonduct in manufacturing and distributing cigarettes during the statutory immunity period.
The Court of Appeal rejected plaintiffs proposed distinction between fraud and product liability claims as “of no consequence in interpreting [the Immunity Statute], because the Legislature supplied its own expansive definition of. . . ‘product liability’ actions.” As defined by the Legislature in the Immunity Statute, a product liability action is “any action for injury or death caused by a product, except that the term does not include an action based on a manufacturing defect or breach of an exprеss warranty.” (Former § 1714.45, subd. (b).) Relying on that language, the Court of Appeal stated: “The Legislature’s plain language compels the conclusion that whether based on allegations or theories of fraud, negligence, or manufacture of an inherently unsafe product, an action in which a plaintiff seeks damages for personal injury or death caused by a tobacco product clearly is a ‘product liability’ action within the meaning of the statute.” Thus, the Court of Appeal held, the Immunity Statute bars each of plaintiffs various claims that defendant tobacco companies defrauded the public about the safety of their products and the risks of tobacco use.
We agree with the Court of Appeal that under the Immunity Statute’s broad definition of product liability lawsuits, it makes no difference whether a claim seeking damages for “persоnal injury or death” caused by a tobacco product is labeled as one for negligence, manufacture of an inherently unsafe product, or fraud. But we disagree with the Court of Appeal that the Immunity Statute precludes plaintiffs recovery under all of his fraud allegations.
As we explained in Richards, which we discuss at length in the companion case of Myers, supra,
We went on to say in Richards: “However, comment i asserts an important qualification of the general rule .... Comment i makes clear that, under
“Thus, comment i observes, ‘[ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture,’ but this is not what the Restatement means by ‘unreasonably dangerous.’ ‘Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics .... Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful .... Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks . . . .’ (Restatement, pp. 352-353, italics added.)” (Richards, supra,
Richards added: “The clear premise of comment i is that no ‘liability’ arises under the circumstances therein described because there is no sound basis for liability. In other words, comment i posits, a manufacturer or seller breaches no legal duty to voluntary consumers by merely supplying, in an unadulterated form, a common commodity which cannot be made safer, but which the public desires to buy and ingest despite general understanding of its inherent dangers.” (Richards, supra,
Thus, as we explained in Richards, the Immunity Statute applied with respect to “pure and unadulterated” tobacco products (that is, products whose contents consumers “desire\\ to buy and ingest’), notwithstanding that the “inherent or unavoidable danger[s]” of those products were “commonly known to the community.” (Richards, supra, 14 Cal.4th at pp. 999-1000, italics added.) Accordingly, the statutory immunity does not shield a tobacco company from product liability for injuries or deaths to consumers оf its products caused by something not inherent in the product itself—that is, if some adulteration of the product made it unreasonably dangerous.
In this case the trial court, relying on the Immunity Statute, sustained defendants’ demurrer to plaintiffs first amended complaint, which included four theories of recovery based on alleged fraud by tobacco companies. For the limited purpose of reviewing that ruling with respect to those four
The trial court was wrong that the Immunity Statute required it to sustain defendant tobacco companies’ demurrer to two causes of action alleged in plaintiffs first amended complaint. In one of these, plaintiff alleges that defendants “manipulat[ed] the addictive properties of cigarettes via . . . additives,” and in the other he asserts that defendants “control[led] nicotine delivery to the smoker, through adding ammonia.” The essence of these allegations is that defendant tobacco companies adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Because, as we have explained, the statutory immunity does not shield a tobacco company from liability for injuries or deaths caused by something not inherent in the product itself, the Immunity Statute does not bar these claims.
But the trial court was correct to sustain defendant tobacco companies’ demurrer to two other fraud claims alleged in plaintiffs first amended complaint, to the extent those claims were based on conduct by tobacco companies during the immunity period. (The concurring and dissenting opinion, however, would allow plaintiff to pursue thesе two claims.)
The complaint alleges that defendants “controlled] the nicotine content of their cigarettes ... by developing high-nicotine tobacco and blended tobáceo.” Because nicotine is naturally present in tobacco, the risks associated with nicotine are inherent in tobacco products. Therefore, an allegation that defendants increased the nicotine content of their cigarettes through blended or high-nicotine tobacco does not avoid the bar of the Immunity Statute because it does not allege that defendants exposed plaintiff to a risk other than those inherent in tobacco products.
The state Court of Appeal reached a similar conclusion in American Tobacco Co. v. Superior Court (1989)
Plaintiff’s first amended complaint further alleges that defendants “lied about the addictive nature of smoking,” in “a campaign designed to deceive the public, plaintiff, the government, and others as to the health hazards of smoking.” According to the complaint, this deception began before 1969, when the federal government first banned certain cigarette advertising, and it continued after 1969, when defendants “disseminate[d] deceptive, erroneous, misleading and false statements” about the “health hazards” and “addictive nature” of smoking cigarettes. These allegations do not suggest that the cigarettes plaintiff smoked exposed him to dangers other than those inherent in cigarette smoking. Thus, to the extent they pertain to conduct by tobacco companies during the immunity period, these allegations fall squarely within the reach of the Immunity Statute, which, during its effective dates from January 1, 1988, until December 31, 1997, shielded tobacco companies against product liability “for injury or death” caused by pure and unadulterated tobacco products. As this court explained in Richards, the Legislature enacted the Immunity Statute to protect manufacturers and sellers of certain inherently dangerous products, including cigarettes, from liability for injuriеs caused by those products precisely because the Legislature itself had concluded “the public desires to buy and ingest [those products] despite general understanding of [their] inherent dangers.” (Richards, supra,
According to the concurring and dissenting opinion, the Immunity Statute does not bar plaintiffs fraud claim based on allegations that defendant tobacco companies deceived the public about the addictive nature of nicotine because smokers generally were not aware of the specific health risks of cigarette smoking. But in American Tobacco, supra,
Ill
From January 1, 1988, and lasting through December 31, 1997, California’s Legislature, by its enactment of the Immunity Statute, protected tobacco companies from product liability lawsuits by smokers. Here, plaintiff was a cigarette smoker for 46 years (from 1950 through 1996). He argues
As we hold in the companion case of Myers, supra,
Regarding defendants’ conduct during the statutory immunity period, we conclude that the Immunity Statute bars plaintiffs claims, however labeled, where they allege no more than personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes. But the Immunity Statute does not bar plaintiffs claims that the defendants adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Nor does the Immunity Statute shield tobacco companies from liability for conduct outside the immunity period.
Disposition
We reverse the judgment of the Court of Appeal and remand to that court for reconsideration of plaintiffs appeal in light of our conclusions here and in the companion case of Myers.
George, C. J., Baxter, J., Chin, J., and Brown, J., concurred.
Notes
Further undesignated statutory references are to the Civil Code.
As in Myers, we use the term “immunity” rather loosely to describe the effect of a law that declares certain described conduct not to be a legal wrong or tort, and thus not a basis for liability.
Plaintiff died while the appeal was pending, and the Court of Appeal granted the application of Joseph Naegele and others as trustees to substitute for plaintiff. For simplicity’s sake, we refer to both Brigham and the trustees as plaintiff.
The Court of Appeal also consolidated plaintiffs appeal for purposes of oral argument with that of Albert J. Pavolini, who had likewise claimed in his lawsuit that he suffered personal injury caused by smoking cigarettes. When Pavolini died, thе Court of Appeal substituted his successor in interest, Richard Donaldson, as plaintiff in that case. Because Donaldson did not seek review here, we do not further discuss that consolidated matter.
Former section 1714.45 provided: “(a) In a product liability action, a manufacturer or seller shall not be liable if: [í¡] (1) The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and ffl] (2) The product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts. [^[] (b) For purposes of this section, the term ‘product liability action’ means any action for injury or death caused by a product, except that the term does not include an actiоn based on a manufacturing defect or breach of an express warranty. [T|] (c) This section is intended to be declarative of and does not alter or amend existing California law, including Cronin v. J.B.E. Olson Corp., (1972)
Concurrence Opinion
I agree with the majority that plaintiffs (see maj. opn., ante, at p. 861, fn. 3) causes of action alleging defendants manipulated the addictive properties of cigarettes by adding ammonia should survive demurrer. I write separately to express my concern that the majority has extended the immunity of Civil Code section 1714.45 (section 1714.45) only to products that are “pure and unadulterated” (maj. opn., ante, at pp. 862, 864-866), imposing a standard that is vague and misleading as well as potentially inconsistent with legislative intent.
Any product processed with one or more additives and thus no longer in its raw or natural state is arguably not “pure and unadulterated”; but that was
Comment i qualifies the general rule of liability for unreasonably dangerous products: “Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from оver-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by ‘unreasonably dangerous’ in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerоus merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.” (Rest., § 402A, com. i, pp. 352-353.)
From this explanation, we can reasonably infer that the Legislature did not extend section 1714.45 immunity to products that are contaminated, perhaps through improper storage or transport, or contain some ingredient making them unfit for ordinary consumption. Such contamination, however, is not the same as processing a “pure and unadulterated” product—as by incorporating additives—to make it more palatable or appealing to the consumer.
This conclusion is fully consonant with our reasoning in Richards, irrespective of the passing reference to a product that is “pure and unadulterated.” As the court went on to explain, “Like comment i, section 1714.45 negates ‘liability]’ to voluntary users for the mere manufacture or sale of ‘common consumer produces] intended for personal consumption,’ . . . which are ‘inherently unsafe’ and are understood to be so by ‘ordinary knowledge common to the community,’ but which are nonetheless consumed with such ordinary knowledge. Like the Restatement, the statute thus precludes ‘liability]’ for the furnishing of such products on grounds that under the circumstances described in the statute, their ‘inherent’ dangers do not make them ‘defective’ when used as intended by voluntary consumers who are aware of the risks .... In other words, under the conditions described by section 1714.45, a tobacco supplier simply commits no tort against knowing and voluntary smokers by making cigarettes available for their use.” (Richards, supra,
Thus, in Richards, we hewed to the statutory language, as informed by the Restatement Second of Torts, section 402A, comment i, in defining liability under former section 1714.45. In my view, we should do the same in articulating the scope of the immunity and not engraft a “pure and unadulterated” standard. This is not to say that some additives may not give rise to unique dangers that take a product outside the statutory definition; but we
Although this case arises under former section 1714.45, which included tobacco as one of the “common consumer product[s]” exempted from product liability actions under the
Concurrence in Part
I agree with the majority that the immunity conferred by Civil Code former section 1714.45 (Stats. 1987, ch. 1498, § 3, p. 5778) (the Immunity Statute) bars plaintiffs claims “where they allege no more than personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes” (maj. opn., ante, at p. 867), insofar as that holding is limited, as the statute requires, to dangers or risks commonly known to the community and to conduct within the immunity period.
I disagree with the majority that the Immunity Statute does not permit recovery based on plaintiffs allegations that “defendants ‘control[led] the nicotine content of their cigarettes ... by developing high-nicotine tobacco and blended tobacco’ ” (maj. opn., ante, at p. 865) and “ Tied about the addictive nаture of smoking’ ” (id. at p. 866, quoting the operative first amended complaint). The majority rests here on the assertion that “[tjhese allegations do not suggest that the cigarettes plaintiff smoked exposed him to dangers other than those inherent in cigarette smoking” (ibid.; see also id. at p: 865), but that is beside the point. The allegations do suggest that the cigarettes plaintiff smoked exposed him to dangers beyond those commonly known to be associated with cigarette smoking. They therefore fall outside the Immunity Statute which, as the majority acknowledges, does not extend to such allegations. (Maj. opn., ante, at pp. 860-861.)
The Immunity Statute provided in pertinent part that, “(a) In a product liability action, a manufacturer or seller shall not be liable if; [|] (1) The
As the majority acknowledges, in Richards v. Owens-Illinois, Inc. (1997)
Plaintiff alleges that defendants conspired to deceive the government and the consuming public (including plaintiff himself) by a variety of means. For example, according to plaintiff, defendants established, funded, and publicized tobacco industry “research” bodies, which they touted as unbiased and trustworthy, and thereafter falsely represented to plaintiff and others that emerging questions about smoking and health would be truthfully answered by these bodies.* *
Throughout the immunity period, according to plaintiff, defendants thus aimed “to intentionally frustrate the flow of information from the medical and scientific community to the general public on the health risks and addictive nature of cigarettes.” Defendants allegedly “controlled, and continue now to control nicotine content of their cigarettes . . . and engineer their cigarettes to control nicotine dеlivery to the smoker .... They then concealed their knowledge of the addictive nature of nicotine and of their manipulation of nicotine levels and delivery. Defendants have denied, and continue to deny publicly that nicotine is addictive, or that they attempt to or do achieve levels of nicotine in their products to create or sustain addiction.” Defendants’ well-funded and deceptive public relations campaign, including “literally hundreds of misrepresentations to plaintiff and others over the course of the last 40 years,” plaintiff alleges, “resulted in plaintiff being unaware” of “the extent to which smoking presented a serious hazard to his health, [or] that the nicotine therein would addict him to smoking . . . .” Indeed, as has been noted, “The tobacco industry has repeatedly told the public that nicotine is not addictive. Most specificаlly and most dramatically, at a congressional hearing on April 14, 1994, seven tobacco company CEOs—each in turn—stated that nicotine is not addictive.” (Glantz et al., The Cigarette Papers (1996) p. 100.)
In short, plaintiff alleges, “[t]he addictive effect of nicotine has long been known and concealed by the defendants.” Despite their secret knowledge, defendants “intentionally conspired to mislead, deceive and confuse the government, and the public, including plaintiff, concerning the harmful and debilitating effects smoking has on the health of individuals, that nicotine in
Plaintiff thus plainly alleges more than “personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes” (maj. opn., ante, at p. 867); he alleges that defendants secretly manipulated the nicotine content of cigarettes to enhance their addictive properties, thus subverting the “ordinary knowledge common to the сommunity,” and materially misled the ordinary consumer about cigarettes’ addictiveness. (Cf. Civ. Code, former § 1714.45, subd. (a)(1), Stats. 1987, ch, 1498, § 3, p. 5778.)
It is a “fundamental premise” of the Immunity Statute that it negates liability only to “knowing and voluntary consumers” of covered products and then only when the conditions described in the statute—including the condition that “the product is known to be unsafe by the ordinary consumer”—obtain. (Richards, supra,
The majority apparently takes the view that the Legislature in the Immunity Statute declared the dangers of cigarettes to be commonly known as a matter of law. (See, e.g., maj. opn., ante, at pp. 861-862.) In support, the majority asserts that in Richards, supra,
When noting in Richards that tobacco was specifically included in the Immunity Statute’s list of inherently unsafe “common consumer produces],” we also carefully noted, in fealty to the statute’s plain language, that the statute precludes liability only “under the circumstances described in the statute” (Richards, supra,
Even if, as the majority asserts, and contrary to the statute’s plain language, the Legislature in enacting the Immunity Statute intended to deem, as a matter of law, that the consuming public had a “ ‘general understanding’ ” of tobacco’s inherent dangers (maj. opn., ante, at p. 866), any such intent logically could have encompassed at the most only those dangers of tobacco that had been publicly reported by the time the Immunity Statute was enacted in 1987. But in the period leading up to and at the outset of the immunity period, the predominant public document informing consumers about the addictiveness of tobacco was the Surgeon General’s 1964 Report on Smoking and Health (Surgeon Gen. Advisory Com. Rep., Smoking and Health (1964) (1964 Report)). Significantly, that report concluded that tobacco use “should be characterized as an habituation rather than an addiction.” (Id., ch. 4, p. 34, italics added.) The 1964 Report actually minimized the health hazards of nicotine in cigarettes, arguing that “the chronic toxicity of nicotine in quantities absorbed from smoking and other methods of tobacco use is very low and probably does not represent an important health hazard.” (Id., ch. 4, p. 32.)
Not until 1988, one year after the Immunity Statute was enacted, did the Surgeon General state unequivocally that cigarettes and other forms of tobacco are addicting and that nicotine is the drug in tobacco that causes
Contrary to the majority’s implication, the addictive property of a substance is qualitatively different from mere “health risks” attendant upon its ingestion. (See maj. opn., ante, at p. 866, citing American Tobacco Co. v. Superior Court (1989)
The majority improperly denies plaintiff an opportunity to attempt to demonstrate the truth of his allegations respecting the consuming public’s knowledge at relevant times. (Maj. opn., ante, at pp. 865-866.) Plaintiffs allegations may or may not ultimately be provable, of course, but on review of a grant of demurrer their provability is not relevant since we assume them to be true. (Kasky v. Nike, Inc. (2002)
Moreno, J., concurred.
The Immunity Statute applied to certain conduct occurring from January 1, 1988, to December 31, 1997 (the immunity period), so that no product liability cause of action may be based on that conduct, regardless of when the users of covered products may have sustained or discovered injuries caused thereby. An amended version of Civil Code section 1714.45, enacted in 1997 (Stats. 1997, ch. 570, § 1), eliminated any immunity for tobacco manufacturers. (See Myers v. Philip Morris Companies, Inc. (2002)
I agree with the majority that on demurrer “an allegation that defendants increased the nicotine content of their cigarettes through blended or high-nicotine tobacco does not avoid the bar of the Immunity Statute [as part of a theory] that defendants exposed plaintiff to a risk other than those inherent in tobacco products.” (Maj. opn., ante, at p. 865.) As I explain more
Plaintiff alleges activities by the Tobacco Institute, the Tobacco Industry Research Committee, the Tobacco Research Council, Tobacco Research—U.S.A., Inc., and the Council for Tobacco Research.
See generally Vladeck, Defending Courts: A Brief Rejoinder to Professors Fried and Rosenberg (2001) 31 Seton Hall L.Rev. 631, 635, wherein the author notes that in a recent book former federal Food and Drug Administration Commissioner David Kessler cites evidence obtained in litigation “to make his case that the tobacco industry deceived Congress, regulators, and the American people about the addictive nature of its products and its ability to manipulate the nicotine dose delivered by cigarettes to maintain addiction.” (See also Kessler, A Question of Intent: A Great American Battle With a Deadly Industry (2001).)