Gianitsis v. American Brands, Inc.

• Decision Date: 04 April 1988
• Docket Number: No. C-86-299-L.,C-86-299-L.
• Citation: 685 F. Supp. 853
• Court: U.S. District Court — District of New Hampshire
• Parties: Nickolas GIANITSIS, et al. v. AMERICAN BRANDS, INC., et al.

685 F. Supp. 853

Nickolas GIANITSIS, et al. v. AMERICAN BRANDS, INC., et al.

No. C-86-299-L.

United States District Court, D. New Hampshire.

April 4, 1988.

Stephen R. Fine & Associates, P.A. by Stephen R. Fine, Manchester, N.H., for plaintiffs.

Ransmeier & Spellman by E. Tupper Kinder, Concord, N.H., Goodwin, Proctor & Hoar by Marshall Simonds and Thomas J. Griffin, Jr., Boston, Mass., Upton, Sanders & Smith by Russell F. Hilliard, Sulloway, Hollis & Soden by Irvin D. Gordon, and Edward M. Kaplan, Concord, N.H., Devine, Millimet, Stahl & Branch, P.A. by Matthias J. Reynolds, Manchester, N.H., Orr and Reno, P.A. by William L. Chapman, Concord, N.H., for defendants.

ORDER ON MOTION TO DISMISS AMENDED COMPLAINT

LOUGHLIN, District Judge.

This is a diversity action pursuant to 28 U.S.C. § 1332 in which the defendants have moved to dismiss all of the claims initiated by the plaintiff as set forth in his original and amended complaints (Doc. # 1 and # 69).

The plaintiff, Nickolas Gianitsis, a resident of Nashua, New Hampshire has asserted a variety of claims against a number of defendants associated with the American Tobacco industry. These defendants include American Brands, Inc., a New Jersey corporation with a principal place of business in New York; Philip Morris, Inc., a Virginia corporation with a principal place of business in New York; R.J. Reynolds Tobacco Co., a North Carolina corporation with a principal place of business within that state; Lorillard Inc., a North Carolina corporation with a principal place of business in New York; the Tobacco Institute, an industry trade organization with a principal place of business in Washington, D.C.

I. Background

Plaintiff alleges that he is currently suffering from lung cancer and its complications. In his complaint, the plaintiff asserts that his disease is a direct and proximate result of his continuous use of cigarettes dating as far back as 1956.

The defendants, with the exception of the Tobacco Institute, are all manufacturers and distributors of cigarettes including, but not limited to such brands as Lucky Strikes, Camels and Kents. The plaintiff claims to have used these products over an extended period, and attributes his cancerous condition to this use. The plaintiff has asserted the following claims: Negligence, misrepresentation, strict liability and unfair and deceptive trade practices.

The defendants have moved to dismiss this action on a number of grounds. The defendants assert that the plaintiff's claims are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1340. The defendants also claim that the plaintiff's risk/utility theory of strict products liability fails to state a claim under New Hampshire law.

Responding, the plaintiff asserts that the claims set forth in the complaint involve situations which predate the Labeling Act legislation and thereby avoid the problem of preemption. The plaintiff also asserts that a risk/utility theory of strict liability is indeed cognizable under New Hampshire law.

Despite the plethora of counts alleged in the complaint, the plaintiff has candidly requested a ruling by this court on the availability of a risk/utility theory of liability. The request is prompted by the potential waste of vast amounts of time, resources and funds which may be expended unnecessarily, should the court fail to rule upon the issue. Simplistically put, the plaintiff has expressed his desire to avoid further exploration of his claims, absent the availability of a risk/utility theory of liability.

The issue which this court must address as a result of the defendant's motion to dismiss involves the application of an avante garde theory of strict liability to what may be termed an archaic human vice. Specifically, this court is asked to determine whether the plaintiff may pursue the defendants in tort, under a risk/utility theory of liability. This begs the question as to whether a plaintiff may assert an action against an alleged tortfeasor, absent a claim of manufacture, design or warning defect, merely because the risks of injury accompanying a product's use, outweigh the utility or social value favoring the continued availability of the product. In this case, the plaintiff wishes to recover damages from the defendants because the plaintiff opines that the risks associated with smoking an ordinary cigarette, far outweigh the social value or utility of cigarettes to our society.

The defendants have moved to dismiss this action on a number of grounds. First, the defendants contend that the plaintiff's claims are preempted by the Federal Cigarette Labeling and Advertising Act. Secondly, the defendants assert that the plaintiff's risk/utility theory of liability fails to state a claim under New Hampshire law.

The plaintiff has responded to the defendants' motion by asserting that the preemption doctrine does not bar claims commenced under a risk/utility theory of liability, and that the operative facts giving rise to the claim occurred prior to the enactment of the legislation from which the preemption argument emanates. The plaintiff further contends that a risk/utility theory of liability is cognizable under New Hampshire law as expressed in the Restatement (Second) of Torts § 402A comment i (1957) hereinafter Restatement 2d.

As previously indicated, in addition to the claims of risk/utility liability, the plaintiff has also asserted claims of negligence and misrepresentation. Albeit, the parties agree that the risk/utility theory of strict liability encompasses the pivotal issues in this action.

A. Strict Liability and Risk/Utility

In our system of judicial determination of conflicts and alleged wrong doings, by and between members of our socio-economic community, legal theories of liability and recovery serve as guidelines which determine and dictate our conduct as members of the community. In tort law, two of the most common theories of liability asserted by individuals are negligence and strict liability. When strict liability is applied to injuries associated with the use of a product, the theory of liability asserted is commonly referred to as products liability. See Prosser, The Law of Torts, § 99 (4th ed. 8th printing 1978).

The elements of such an asserted cause of action have been somewhat codified by the Restatement 2nd of Torts § 402A.

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The doctrine has been used to support claims for injuries arising from the use of a wide range of products, including automobiles, food products and lawnmowers. See e.g. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); McIntyre v. Coca-Cola Bottling Co., 85 F.Supp. 708 (W.D.Mo.1949). Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978).

As is clear from the language of the Restatement, the basis of any claim involving products liability, is an allegation of a defect associated with the product, which makes the product unreasonably dangerous, and causes the injury for which recovery is sought. Wood v. Public Service Co., 114 N.H. 182, 188, 317 A.2d 576 (1974); Buttrick v. Lessard & Sons, Inc., 110 N.H. 36, 38-39, 260 A.2d 111 (1969).

Traditionally, the alleged defect may exist in one of three forms. The claim may be for injuries arising out of the defective design of a product, defect in the manufacture of a product, or a defect in the failure to provide adequate warnings in conjunction with the use of a product. Dyson v. General Motors Corp., 298 F.Supp. 1064 (1969); Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (1968); See also, Prosser, Law of Torts, 657-59 (4th ed. 8th printing 1978). Once a claimant has alleged a defect giving rise to a product liability action, it must further be established that the product is unreasonably dangerous before recovery may be obtained. Restatement 2d § 402A. In order to determine whether a product is unreasonably dangerous, the Restatement provides some insight, particularly apposite to this action.

The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. 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 over-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 fusel 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 dangerous merely because, if such be the case, it deposits cholesterol in the arteries and

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