Tillman v. RJ Reynolds Tobacco Co.

• Citation: 871 So.2d 28
• Parties: Brenda D. TILLMAN, as executrix under the will of Kalen Oliver Tillman, deceased v. R.J. REYNOLDS TOBACCO CO. et al.
• Decision Date: 30 June 2003
• Court: Supreme Court of Alabama

871 So.2d 28

Brenda D. TILLMAN, as executrix under the will of Kalen Oliver Tillman, deceased v. R.J. REYNOLDS TOBACCO CO. et al.

1001644.

Supreme Court of Alabama.

June 30, 2003.

Ross Diamond III of Diamond, Hasser & Frost, Mobile; and Jere L. Beasley and R. Graham Esdale, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for plaintiff.

Samuel H. Franklin, William H. Brooks, and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; Joseph P.H. Babington and John T. Dukes of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile; and Thomas D. Schroeder of Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, for defendants.

PER CURIAM.

The United States Court of Appeals for the Eleventh Circuit has certified the following question to this Court pursuant to Rule 18, Ala. R.App. P.:

"Whether there is any potential cause of action under any theory against any retail defendants including those that employ pharmacists who sell cigarettes for claims brought under the Alabama Extended Manufacturer's Liability Doctrine, or premised on negligence, wantonness, or civil conspiracy under Alabama law."¹

Tillman v. R.J. Reynolds Tobacco Co., 253 F.3d 1302, 1307-08 (11th Cir.2001). This Court heard oral argument in this case on May 15, 2002.² We answer the certified question in the affirmative as to claims premised on negligence and wantonness and as to claims premised on an alleged civil conspiracy; as to all other claims, including those premised on the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"), we answer the question in the negative.

I. Facts and Procedural History

Kalen Tillman originally sued the defendants³ in the Mobile Circuit Court, alleging that he had smoked Winston brand cigarettes since 1968, and that as a result he developed lung cancer.⁴ He asserted products-liability claims under the AEMLD, as well as negligence, wantonness, and civil-conspiracy claims. Kalen died in April 1999, and Brenda Tillman, his wife and the executor of his estate, was substituted as the plaintiff in this action.

The defendants removed the case to the United States District Court for the Southern District of Alabama on the basis of diversity jurisdiction. Tillman filed a motion to remand the case to the Mobile Circuit Court, which the district court denied. In October 1998, the district court dismissed the retailers and the individual defendants as having been fraudulently joined. Tillman then voluntarily dismissed RJR Nabisco, Inc., leaving R.J. Reynolds Tobacco Co. ("Reynolds") as the sole defendant. In January 2000, the district court granted Reynolds's motion to dismiss for failure to state a claim and entered a judgment in favor of Reynolds. Tillman v. Reynolds Tobacco Co., 89 F.Supp.2d 1297 (S.D.Ala.2000).

On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the district court's dismissal of the claims as against the five individual defendants. Tillman's claims against the retailers alleged a violation of the AEMLD in the marketing and sales of cigarettes, as well as negligence, wantonness, and civil-conspiracy claims. As to those defendants, the Eleventh Circuit Court of Appeals certified the present question and provided the following analysis of the relevant Alabama law:

"To recover under the AEMLD, plaintiff must show, among other things, that `an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer....' Bell v. T.R. Miller Mill Co., 768 So.2d 953, 957 (Ala.2000); see also Allen v. Delchamps, Inc., 624 So.2d 1065, 1068 (Ala.1993)

. A product is not unreasonably dangerous unless it fails to `meet the reasonable safety expectations of an "ordinary consumer," that is, an objective "ordinary consumer," possessed of the ordinary knowledge common to the community.' Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991) (citations omitted); see also Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala.1976) (establishing `reasonable expectations' test and adopting comment i to § 402A of the Restatement (Second) of Torts ); Ex parte Chevron Chem. Co., 720 So.2d 922, 927 (Ala.1998) (`it is clear drafters of Restatement intended § 402A's concept of an "unreasonably dangerous" product does not include "a product the dangers of which the consumer could be expected to be aware of, an awareness that may be enlightened by a warning."`). `Although, under Alabama law, a jury ordinarily evaluates a plaintiff's claims that a product is defective, our review of the pertinent case law convinces us that certain products whose inherent danger is patent and obvious, do not, as a matter of law, involve defects of a sort that a jury should resolve.' Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990)."

253 F.3d at 1306. The Eleventh Circuit Court of Appeals noted that it had "found no Alabama case, nor [had] the parties referred [it] to any decided under the AEMLD involving cigarettes. The Alabama cases cited by the parties involve different products." 253 F.3d at 1307.

II. Analysis

A. AEMLD

The first part of the certified question is whether there is a cause of action against tobacco retailers under the AEMLD. To establish liability under the AEMLD, a plaintiff must show

"[1] that an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer; [2] that the seller was engaged in the business of selling such a product; and [3] that the product was expected to, and did, reach the user without substantial change in the condition in which it was sold."

Bell v. T.R. Miller Mill Co., 768 So.2d 953, 957 (Ala.2000) (emphasis added). See also Grimes v. General Motors Corp., 205 F.Supp.2d 1292, 1294 (M.D.Ala.2002); Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 215 (Ala.1994).

In this case, the parties do not dispute the second and third parts of the three-part test. The retailer defendants do not dispute that they are "engaged in the business of selling" cigarettes, Bell, 768 So.2d at 957, or that the cigarettes "reach[ed] the user without substantial change in the condition in which [they were] sold." 768 So.2d at 957. The only question that must be answered in this case to determine whether a cause of action exists under the AEMLD is related to the nature of the product itself: Are cigarettes an unreasonably dangerous product?

"`Liability under the AEMLD turns upon whether a product is unreasonably dangerous when put to its intended use.'" Hicks, 652 So.2d at 216 (quoting Koehring Cranes & Excavators, Inc. v. Livingston, 597 So.2d 1354, 1355 (Ala. 1992)). In Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), the case that, together with Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), established the AEMLD, this Court explained:

"The product either is or is not `unreasonably dangerous' to a person who should be expected to use or to be exposed to it. The important factor is whether it is safe or dangerous when the product is used as it was intended to be used. Cf. 62 Ky. L.J. 866. However, danger may be obviated by an adequate warning. Comment i. of § 402 A, Restatement of Torts 2d, states:

"`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.'"

335 So.2d at 133 (footnote omitted). More recently, this Court held that to show that a product is in a "defective condition unreasonably dangerous to the plaintiff" the plaintiff must demonstrate that "the product fails to meet the reasonable safety expectations of an `ordinary consumer,' that is, an objective `ordinary consumer,' possessed of the ordinary knowledge common to the community." Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991), citing Casrell, 335 So.2d at 133.

In determining whether a product is unreasonably dangerous, this Court and the Court of Appeals for the Eleventh Circuit have explained that there are some products the use of which are "so firmly grounded in common sense as to require no specific instructions or warnings." Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 450 (Ala.1988), quoted in Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990). Although a jury will normally determine the dangerousness of a product, "certain products whose inherent danger is patent and obvious, do not, as a matter of law, involve defects of a sort that a jury should resolve." Elliott, 903 F.2d at 1507 (emphasis added).

"Some products, by their nature, (or, in modern parlance, by their conscious design), place both users and bystanders in some measure of danger. A knife or axe may cut persons, as well as their intended targets. Fish hooks can wound; saws can maim, and revolving propellers can cause fearful damage. Yet ... we do not hold manufacturers liable simply because the use of their products involves some risk."

903 F.2d at 1507 (emphasis added).

As noted above, this Court in Casrell quoted with approval Comment i. to § 402A, Restatement (Second) of Torts. See 335 So.2d at 133; Elliott, 903 F.2d at 1507 (recognizing the adoption of Comment i. by this Court). Comment i. includes tobacco in its list of examples of products that are not unreasonably dangerous, notwithstanding their potential for harm to the user or consumer: "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."⁵

Moreover, there is a "wealth of judicial precedence" recognizing that the dangers of cigarette smoking are well-known.⁶ See Tillman, 89 F.Supp.2d at 1301-02 (citation to numerous cases recognizing the commonly known dangers of cigarette smoking). "The dangers of cigarette smoking have been...