*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

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; 557 N.E.2d at 1053 & n. see Burton v. R.J. properties, er of certain diction, such as nicotine ad- Reynolds F.Supp. Tobacco 1525- conjunction with its harmful (D.Kan.1995). qualities, product unreasonably render the unreasonably dangerous addiction, product is he never that the smoking, including *12 taking into consideration very designed, the smoking. At as would have started least, product the risk involved utility a fact issue re- of the and testimony this creates have heeded Id. at 847 n. 1. garding whether Grinnell would its use. given to him before warnings had been of the that evidence In Turner we held Grabowski, an ex- began smoking. Dr. he utility were ad- following factors of risk addiction, that was pert on testified (1) utility the design defect cases: missible cigarettes by the late 1950s and addicted public the product to the user and to of the stopped not have early 1960s and could weighed against gravity the as a whole intervention.” In smoking without “intensive (2) use; injury its of from likelihood short, summary judgment evi- American’s product availability which substitute conclusively establish that dence does and not be unsafe meet the same need would fol- adequate warnings would not been (3) expensive; the manufac- unreasonably or have “made a thus would not lowed and charac- ability the unsafe turer’s to eliminate Saenz, 873 in the outcome.” difference seriously impairt product without ter of the judgment on the Summary S.W.2d at 357. increasing significantly or ing its usefulness theory related to marketing defect Grinnells’ (4) costs; anticipated awareness its the user’s cigarettes was there- the addictive nature product in the dangers inherent of the improper. fore public avoidability general because of their Thus, gener- that the to the extent we hold knowledge of the obvious condition within the health risks of al of suitable warn- the existence product, community even to the knowledge common instructions; expectations ings or smoking in began before Grinnell ordinary consumer. Id. of the its has established that American 384; Inc., 911 Caterpillar, S.W.2d See also dangerous. unreasonably Sum- were not Houston, Bailey, v. Inc. Boatland of was, therefore, proper to the mary judgment (Tex.1980). 746 n. liability claims strict extent the Grinnells’ that the common- argues American risks associated general relate design bars the Grinnells’ defense However, that smoking. we also hold But, as we as a matter of law. defect claims of law as a matter

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 584 S.W.2d at 850. nonfiltered, Determining design unreasonably if a it was filtered or whether balancing utility long cigarette. right? dangerous requires short or Is product against the risks involved correct. A: That’s use. Id. at 847 & n. 1 similarly: Dr. Ginzel testified Inc., Caterpillar, Doctor, 911 S.W.2d at 383-84. Ac- Q: any is there safe *13 cordingly, attempt American’s to invoke the respect lung cancer? with common-knowledge defense the context of that I know of. A: Not alleged design an defect is without merit. Q: any design cigarette for a Is there that that Mr. Grinnell could have smoked Alternatively, argues that it American is would have avoided his claimed can- summary judgment entitled because no cer? cigarette design safer In alternative exists.

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.” 911 S.W.2d at 384.9 claims, design including defect Grinnells’ Accordingly, if there is no safer alternative to quality ciga those based on the addictive American, by manufactured rettes. unreasonably then its are not dan- gerous as a matter of law. Manufacturing Defect ciga-

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 708 S.W.2d at 435. im- tobacco. These materials also misrepresentation require ligent claims rea safe, plied fit for human representation. on the See sonable reliance contaminants, consumption, free of and not Sloane, Federal Land Bank Ass’n v. A addictive. fourth document the Grinnells 439, 442 allege misrepresenta- contained affirmative claim, Though not a an ex fraud-based stating tions is an advertisement press warranty requires claim also a form of longer cigarette naturally Pall Mall “filters reliance. The Uniform Commercial Code the smoke” but “does not filter out the Pall provides express warranty created Mall flavor.” This advertisement also stated “[a]ny promise affirmation of fact or friendly that Pall Malls were to a smoker’s buyer made the seller to the which [is] taste “for flavor and mildness fine goods part of the relates to the and becomes tobacco filters best.” bargain.” Tex. Bus. & Com.Code basis of The Grinnells also contend that American 2.313(a)(1) added). (emphasis “Basis of products intended consumers of its to see bargain” loosely common-law reflects the rely in its advertise- statements express warranty requirement11 of reliance. They ments. bolster this contention with the *16 Corp., Bell Tel. Co. v. FDP Southwestern Heimann, deposition testimony one of Robert (Tex.1991); n. 2 see Mor S.W.2d officers, of American’s former chief executive Adolph v. Co., ris S.W.2d Coors why who testified: “There is no reason [con- (Tex.App. writ ref'd Worth — Fort accept position could not our stated sumers] n.r.e.). products here we and elsewhere Similarly, injurious not to representa make are health.” Because all four of the Leake, Preston American’s research and de- by the re tional claims asserted Grinnells officer, deposition velopment reliance, testified his summary quire form of some products.” that “these are safe judgment proper was on each American negated reliance as a matter of law. We outset, recognize that At the we conclusively negated hold that American fraud, concealment, negligent fraudulent the element of reliance. misrepresentation, express warranty and summary judgment establishes claims all share the common of reli The record element Texas, complete tes- plaintiff In action a absence of reliance. Grinnell ance. a establishes specifically deposition that he if the makes a material tified his able fraud defendant false, seeing only Reynolds’s ad- representation, remembered R.J. that is either known vertisements, might also but that he have be false when made or is asserted without truth, first American’s advertisements. The knowledge of its that is intended to be seen seeing any injury. advertise- upon, that causes time he remembered and is relied and Meadows, link Sears, disputing alleged between 877 ments Roebuck & Co. (Tex.1994); in “the ear- Stanley smoking and cancer was T.O. S.W.2d ’70’s,” Paso, ly maybe approximately and late Bank El 847 S.W.2d ’80’s Boot Co. v. Tunks, representation requires a before an Co. v. reliance on 11. See Shamrock Fuel & Oil Sales arises). (Tex.1967)(common express warranty 416 S.W.2d law to warn. The thirty years began smoking. testing, he These failure Grinnells’ after from the and 1980s negligent design manufacturing advertisements 1970s claims produced, not been were not reviewed distinguishable from the conceptually deposition, during Grinnell his and were liability liability strict claims. While strict record. materials on not included The product, focuses on the condition actually which the base their Grinnells manu “[n]egligenee looks the acts of the claims, however, in the were all released if it ordi facturer and exercised determines 1950s and 1960s. Grinnell never testified production.” nary design care Cater these that he relied on advertisements Inc., Negligent pillar, deposition testimony his own establishes manufacturing predi claims are design and began friends he because his safer alternative cated existence smoked, changed and that he later brands 384-85; design product. for the Id. at Gon Lucky Pall Mall from Strikes to Malls to Pall Tractor Caterpillar zales v. taste, based not Golds because of adver- Absent alterna 871-72 tisements. design, negligent design a claim for tive re- the various advertisements Of Grinnell manufacturing as a of law. As fails matter seeing membered and claimed have relied discussed, previously conclu we American on, only advertisements Old Golds sively proved reasonably no alter safer directly equated Camels with design Ac cigarettes. native exists for The stat- health. Old Golds advertisements cordingly, the cannot maintain their Grinnells ed, “For a Instead of a ... Treat Treatment de negligent manufacturing claims for Old advertise- Smoke Golds.” Camel sign law. as matter of ments stated “More Doctors Camels Smoke above, Additionally, as we held Any Cigarette!” Than never Other conclusively the com American established smoked Camels or Old Golds and American mon-knowledge regard defense ciga- never manufactured these brands of smoking. general health risks associated with rettes. these Reliance on advertisements Therefore, summary judgment proper on fact issue does raise a in this case. negligent failure claim the Grinnells’ to warn Moreover, parties dispute do general the extent it relates neither Robert Heimann’s nor Preston smoking. negligent The Grinnells’ risks concerning Leake’s statements American’s testing predicated claim on American’s safety intent or the of its products were inher to test and ascertain included advertisements other materials products in its about which it must warn ent public. disseminated to the testing the negligent consumers. Because short, summary judgment American’s *17 the inextricably claim is intertwined with proves rely evidence that Grinnell on did claim, negligent failure to we Grinnells’ warn any of the American’s advertisements from summary judgment proper hold that was also 1960s, that, although 1950s and he could it the on this claim to the extent relates to conceivably relied on the advertise- However, cigarettes. general health risks 1980s, ments from 1970s and adver- the these conclusively American did not establish tisements not included in the record were knowl specific danger of addiction was subject speculation. and their content is Ac community in 1952. edge common to the Speculation cannot create a fact issue. Duff common-knowledge defense cordingly, (Tex.1988). Yelin, 175, 751 v. S.W.2d 176 preclude pre-1969 does not Grinnells’ record, this Based on we hold that American negligent test negligent failure to warn conclusively negated element of reliance. ing claims to these claims relate to the extent fraud, Summary proper judgment was are qualities addictive concealment, misrepre- negligent fraudulent law. preempted by federal sentation, express warranty claims. Conspiracy E. Negligence

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.” 505 U.S. at 112 several courts appeals have discussed sections 519 and at 2621. S.Ct.

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 112 S.Ct. at 2623. alleged duty based on American’s to disclose Preemption of neutralization claims is based information about the ciga- harmful effects of on the rationale that prohibition a state-law Reynolds rettes. See Forster v. R.J. Tobacco advertising tends to minimize the (Minn.1989). 437 N.W.2d health hazards associated with Fraudulent preempt- concealment claims are simply the converse of a require- state-law they rely duty ed insofar as on a state-law warnings ment that additional be included in through disclose facts advertising pro- advertising promotional and materials. Id. Cipollone, 524-28, motion. 505 U.S. at 112 Accordingly, deceptive advertising the DTPA S.Ct. at 2621-24. claim is preempted. also regard With to the Grinnells’ DTPA reasons, For foregoing the we hold that claims, pre-1969 we first note that the DTPA summary judgment on post- the Grinnells’ claims fail as a matter of law. The DTPA regarding 1969 claims warnings and the applies only practices to acts or occurring neutralizing avoid the effect of the federal- 21, 1973, May after the DTPA’s effective ly warnings proper mandated as those 17.63; date. Tex. Bus. & Com.Code see preempted by claims are the 1969Act. Prods., Litton Indus. Gammage, Inc. v. Accordingly, if III. Conclusion post-1969 all of the Grinnells’ claims summarize, following To of the Grin- preempted, then all of their DTPA claims summary judgment: nells’ claims survive must also fail. pre-1969 defect, liability marketing strict argue The Grinnells first Amer warn, pre-1969 negligent pre- failure to and 17.46(b)(23) ican violated DTPA section negligent testing to the extent these intentionally failing to disclose information claims quality ciga- relate to the addictive about the its in order to rettes; implied warranty relating claims people above, induce to smoke. As discussed to the quality addictive claims for failure to disclose information years extent arose within four before through advertising promotional materials suit; the Grinnells filed and the manufactur- clearly preemptive fall within the 1969 Act’s claim, ing which in defect survives its entire- scope. 524-25, Cipollone, 505 U.S. ty. Accordingly, part in we reverse and Therefore, S.Ct. 2621-22. the Grinnells’ part in judgment affirm court of DTPA “failure to disclose” claims are appeals, surviving and remand the Grinnells’ preempted. claims to proceed- the trial court for further Second, allege the Grinnells ings. 17.46(b)(5) (7) American violated sections by using deceptive representa of the DTPA HECHT, Justice, concurring part in tions advertisements. Sections dissenting part. 17.46(b)(5) (7) of the DTPA specifically join fully I concurring Justice Enoch’s prohibit deceptive representations in connec dissenting opinion separately and write tion with the advertisement sale only my to add a few words of own. 17.46(b)(5) goods. §§ Tex. Bus. & Com.Code (7). Among holdings The Grinnells’ claim under these sec the Court’s are these four (1) properly things. person tions is characterized as a neutrali A who started allegedly damages contracting zation claim because American cannot for recover deceptive made the statements in its adver manufac- cancer because tizing promotional smoking may materials with the turer did not warn that cause diminishing impact intent of of the feder cancer. That risk was common knowl- 1952.(3) warnings. preempted by edge long al This claim is also But before same Cipollone damages holding that claims based on smoker can recover the same —that is, attempt contracting lung “[neutralize] manufacturer’s cancer —because *20 “dangerous it ex- unless is dangerous warn that cigarette manufacturer failed to contemplat- be may beyond be That risk was that which would smoking addictive. tent 1988; ordinary purchases knowledge by not before consumer who common until the ed only it, common to ordinary knowledge then it was with the smoking habit-forming. community as its characteristics.” was the 402A, § (Second) of ToRts Restatement reasons I think the Court’s For several (1965). smoker, i, ordinary The cmt at view is untenable. family, or her know and all his friends Texas, as in the law places, In most First: smoking. They very quit it is difficult to unreasonably “[g]ood is tobacco not is Surgeon General knew it when merely dangerous the effects because smoking was thought that he ad- announced harmful; con- smoking may be but tobacco 430; dictive, it in they knew ante something marijuana may like be un- taining Surgeon announced that General dangerous.” (Sec- reasonably Restatement habitual, smoking ante thought he was 402A, (1965); i, at 852 ond) cmt of TORTS 6; they generations before n. knew it Sons, Seagram Inc. v. Joseph see E. Wiley 1952. The Grinnell started (Tex.1991) McGuire, long knowledge; difficulty has been common i). (following comment Plaintiffs’ claim “addiction”, significant labeling though it sci- cigarettes Wiley this case that the to an entifically, nothing practical adds ordi- unreasonably dangerous be- smoked were nary knowledge. smoker’s pesticide is al- cause contained residue i, by although comment I think for lowed risk is subsumed Third: The of addiction explains, that claim reasons Justice Enoch prob- in the risk of cancer and similar for cannot withstand motion defendant’s only if is at all danger lems. Addiction summary judgment. Plaintiffs’ claim that unhealthy. is dependency Addiction addictive, however, not al- is it is dangerous, not ex- is because i. contains lowed comment Good tobacco others, pensive or offensive to but because it im- foreign nicotine. Nicotine is not a lung the risk of cancer. Addiction increases tobacco, marijuana proper substance like fatal, it can be itself is never overcome. (as i) pesticide (plaintiffs’ in comment smoking, People quit smoking. But whether here) plaintiffs are allegation would be. If habit, choice, addiction, or free because of addictive, right that nicotine is then addiction It is an can cause cancer that is fatal. odd merely is of the one harmful effects damages recovery affords to a rule that and cannot make oth- tobacco itself therefore says, though I plaintiff who “I smoked even dangerous. good unreasonably tobacco erwise cancer, I get but might knew I never fact, agents plaintiffs if the claim are I might I known have done it had would tobacco, it addictive removed from the Why the risk of become addicted.” is addic- “good longer would no be tobacco”. One danger “beyond that which would be tion a might a maple as well smoke leaf. contemplated by ordinary consumer” if is serious risk of cancer com- The distinction addiction the far more Second: between Because, habituation, knowledge? says, important in con- mon the Court scientific texts, cigarettes multiplies com- unimportant purposes for “the addictive nature of thing to contributes only i. The two ideas mean one the likelihood ment injury”. Ante at 429. quit. hard to not a new ultimate smokers: it’s This is smoker’s Granted, for suddenly Surgeon allowing a smoker to sue discovery, but revealed anyone strikes report. being warned of the risk of addiction General in a 1988 Almost person any allowing a insists on walk- length of time and me as who who ever smoked despite hard; edge sharp many ing along of a cliff stop has found it tried to being why, danger to sue for not warned impossible. understood obvious found it Few body slip. person need might never psychological that he terms of and biochemical surely simply stayed processes, difficulty worry slipping no about he but the fully away edge. be What sense does merely from less real it could unreasonably say: edge explained. really make to “Don’t walk A is not *21 you risks,” the cliff because by phrase “general could fall hundreds of means death, your besides, feet you might giving guidance parties and no to the or to the slip.” I simply person do not see public how a who cigarette-related dangers about which despite may smokes common knowledge given duty to a in rise to warn by risk of cancer will shortcoming be deterred a 1952 and which did not. il- This warning problem manufacturer’s of the risk of lustrates the fundamental with the addic- analysis “general tion. Court’s health risk” of —the cigarettes, found the Court to be com- Fourth: if Even addiction is a risk of monly in known is that when used as smoking separate apart and from all the intended, Further, they you. can kill in other health risks that are common knowl- decision, reaching its the Court misreads at edge knowledge and were common in opinions least two this Court’s recent cigarettes and even if unreasonably are dan- misapplies knowledge the common doctrine. risk, gerous because of that a liabili- Finally, the Court mischaraeterizes the Grin- ty claim should be to damages limited caused pesticide manufacturing nells’ claim as a de- risk, by that not the risk of cancer. Yet the claim, fect actually design when it is a defect plaintiffs Court allows in this ease to recover summary judgment claim for which just suspected as no one had ever appropriate. American I was would hold smoking causes If cigarettes cancer. are summary judgment proper on all of only smoking may defective be ad- the Grinnells’ claims. dictive, plaintiffs’ damages should be limited to those caused the defect. The Court

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. 814 S.W.2d 385 by defining The Court limits McGuire ENOCH, Justice, HECHT, joined by knowledge doctrine as “extraor- Justice, concurring dissenting. dinary only applies defense that in limited Grinnell, cancer, Wiley Jr. died of a circumstances.” 951 S.W.2d at 427. We did risk that this Court holds as a matter of law not find the common doctrine so knowingly willingly he undertook when “extraordinary” Caterpillar, Inc. v. began smoking he American’s Shears, (Tex.1995), conclusion, Despite despite this heavy equipment which we held that a manu- knowingly willingly the fact that Grinnell duty facturer did not have a to warn of the began smoking packs day, three the Court operating a front-end loader with- may holds that American Tobacco be liable protective out a rollover structure. Nor did thirty- for Grinnell’s death because some suggest only we that the defense has limited years develop three later Grinnell did in fact Rather, applicability. we that the obvi- held freely the disease the risk of which he ac- pertinent any inquiry ousness of a risk is cepted age nineteen. about manufacturer’s distributor’s Shears, hinges today The Court its decision to warn of that risk. 911 S.W.2d at premise “general that while the health risks” I fail to see how the common knowl- commonly edge any extraordinary known doctrine is more specific applicability any risk addiction was not com- of more limited than other monly smoking. liability. Accordingly, I known when Grinnell started defense to would However, explain fails to what it restrict it as the Court does. Court Emphysema? Bronchitis? cancer? suggests

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 911 S.W.2d at 381. our (E.D.Tenn.1985) (following supreme state alleged to warn of the There the failure judicial public court’s notice of the under operating risks of a front-end loader without alcohol, standing of the inherent plain- protection The a rollover structure. knowledge trial court found that of the harm- injury as a of a tiff’s occurred not result part fid health effects of is rollover, Id. but a rear-end collision. from knowledge community), of the of partic- parse out and examine the We did (6th Cir.1988); aff'd, Paugh v. F.2d 230 injury from a rear-end collision. ular risk Reynolds F.Supp. R.J. Tobacco Rather, part of the we that risk as examined (N.D.Ohio 1993) (same). I would safety operating general more risk give opinion our such unanimous in McGuire unpro- exposed front-end loader from an short shrift. par- tected driver’s seat. Under Court’s Finally, paradoxically the Court rather approach, result ticularized-risk paints giving, with too broad stroke today. would be different Shears best, vague health “general definition today, in the the com- commonly risks” that are so known Given the Court’s decision any knowledge community beyond dispute. What retains little as to be mon doctrine jurispru- products liability we are to learn from about relevance our able the Court trumps gener- specific in- “general these health risks” that dence because the is cancer, smoking was say can “I knew but not What al. We now clude addiction. me, I could even kill but smoking-related health risks? bad for me and about other know I become addicted.”1 Lip cancer? Throat cancer? could Other cancers? didn’t Lab., patient’s part 514 S.W.2d at Winthrop Div. thumb. 1. The Court cites Crocker hand, Grinnell, Jr., Inc., (Tex. Wiley other did not Sterling Drug, 514 S.W.2d 429 rather, reasons; 1974), “recog he proposition we have use knowingly for ciga willingly elected to smoke the need nized seriousness addiction and commonly "general despite danger known to warn in the rettes for manufacturers of this Second, drugs.” we stated in Crocker prescription S.W.2d at health risks.” context of First, good and that talwin is a inapposite. "the record ... shows is it involved Crocker (talwin) prescribed drug adverse side effects prescription drug by a which has no doctor useful great majority people use it but brought by amputation upon the who pain for relief of There are limits to what the law can and III require should in warnings. The Court’s re- today summary Court announces treat from may sap McGuire the common judgment proper favor of American was any vitality doctrine of it has in “to the extent” that the claims “relate to the the law. general health risks associated with smok- ing” but not “to the extent” that the claims II allegation are “based on the that the addic- I also holding dissent from the Court’s tive nature of rendered American’s the Grinnells’ regarding presence claim products unreasonably dangerous.” pesticides a “manufacturing defect” *23 S.W.2d at 432. This is a distinction without claim that must be remanded for trial. The content. I holding would adhere our in Court states that manufacturing defect McGuire and find that all of the Grinnells’ predicated claim is on “a deviation from failure-to-warn related claims are barred planned output.” 951 S.W.2d at 434 (citing Moreover, the common doctrine. Pool, Ford Motor Co. v. I summary judgment would hold that was 1985), (Tex.App. part — Texarkana aff'd proper on all design of the Grinnells’ defect part and rev’d grounds, on other claims, including predicated those (Tex.1986)). S.W.2d 629 Curiously, presence pesticides. pesticide Court then concludes that the claim claim, is a manufacturing defect design not a claim,

defect though “[a]ccording even

undisputed facts, pesticide residue is inciden

tally, yet normally, found in tobacco after it fumigated.” 951 S.W.2d at 434. I am not

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. 77 L.Ed. 571 Argued Nov. 1994. Even if presuming the Court is correct incorpo American did not “intend to July Decided pesticides rate” into cigarettes, this does Rehearing Overruled Oct. pesticide not convert the claim into a manu facturing summary judg defect claim. The proof

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.