Grinnell v. American Tobacco Co., Inc., 09-93-039

Citation883 S.W.2d 791
Decision Date17 November 1994
Docket NumberNo. 09-93-039,09-93-039
PartiesProd.Liab.Rep. (CCH) P 14,068 Jeannie GRINNELL, et al., Appellants, v. The AMERICAN TOBACCO COMPANY, INC., Appellee. CV.
CourtCourt of Appeals of Texas

David B. Gaultney, Dewey J. Gonsoulin, Mehaffy & Weber, Beaumont, for appellant.

Sam Cruse, Jr., Cruse, Scott, Henderson & Allen, Houston, Hubert Oxford, III, Benckenstein, Oxford & Johnson, Beaumont, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BROOKSHIRE, Justice.

This legal proceeding was originally filed by Wiley Grinnell, Jr., and his wife, Jeannie Grinnell. The Grinnells pleaded to recover damages for personal injuries and personal damages allegedly suffered by Wiley Grinnell, Jr. These personal injuries and damages were said to be the result of smoking cigarettes which were designed, manufactured, marketed, and sold by the defendant-appellee.

In July of 1985, Grinnell, Jr., an original plaintiff, was diagnosed by medical doctors as having lung cancer. This suit was then filed on October 9, 1985. Wiley Grinnell, Jr., was deposed at some length on April 30, 1986. Later that year in late May, Grinnell, Jr., died.

The plaintiffs' first amended petition was filed on April 1, 1987, by his surviving widow, Jeannie. Jeannie had been appointed and qualified as independent executrix of the estate of her husband. Grinnell, Jr.'s surviving parents were added as plaintiffs as was his surviving adult son, Kevin. By these first amended pleadings the plaintiffs sought to recover actual and punitive damages under several theories and under the Texas Wrongful Death Act as well as under the Texas Survival Statute.

In late May of 1987 the trial court granted to the appellee a partial summary judgment. This partial summary judgment dealt with the plaintiffs' various claims which had challenged the adequacy of a congressionally mandated statute and warnings as well as the propriety of the appellee's advertising and promotional practices from and after the date of January 1, 1966.

Then in mid-April of 1989 the trial judge granted the appellee's later filed motion for partial summary judgment, dismissing the plaintiffs' claims that arose as post-1965 claims. These summary judgments were partial summary judgments only and because of the nature of the suit below and because of the wording of the partial summary judgments, neither of these partial judgments was final or appealable.

Later in the first week of January, 1993, the trial court considered the appellee's renewed motion for summary judgment. This later-filed renewed motion attempted to cover all of the plaintiffs' causes of action and sought to dismiss the entirety of the causes of action that were pleaded in the plaintiffs' third amended original petition. The trial court entered a nunc pro tunc order and then entered an amended order in the latter part of January 1993 which granted the tobacco company's renewed motion for summary judgment and on January 29, 1993, the trial court dismissed all of the plaintiffs' claims and causes of action and pleaded grounds for relief. This action of January 29, 1993, was a final judgment and an appealable judgment. This appeal was timely and properly perfected.

This appellate proceeding now before us seeks relief from the orders entered by the trial court and especially from the final, appealable order of January 29, 1993. Another defendant below, namely, Price & Company was dismissed out of the lawsuit. Price & Company was not named in the plaintiffs' second amended original petition. The record before us clearly reflects that the defendants, The American Tobacco Company (ATC) and American Brands, Inc., are actually one and the same company; therefore, this is an appeal from a final judgment below.

The appellants bring five points of error. Appellants properly group point of error number one and point of error number two. Point of error number one states the trial court erred in granting the appellee's motion for partial summary judgment in respect to all of the appellants' claims challenging the adequacy of the congressionally mandated warnings and the propriety of The American Tobacco Company's advertising and promotional practices beginning and since January 1, 1966. The second point of error is similar to the first. The second point states the trial court erred in granting the appellee's motion for summary judgment dismissing all of the appellants' post-1965 claims. Concededly, however, point of error number two is much broader in scope than point of error number one.

Within about three months after Wiley Grinnell, Jr., had been correctly diagnosed with lung cancer, his original petition was filed. In this first pleading the plaintiffs below alleged that this action arose out of the illness of lung cancer suffered and sustained by Grinnell, Jr., caused by cigarette smoking. Grinnell's condition was described as a progressive condition and the petition affirmatively set out that the causation and cause or causes of Grinnell's lung cancer was brought about and contributed to by cigarettes manufactured, designed, marketed, and sold by the defendant.

In the original pleadings, the first plaintiffs below allege various theories of liability and various causes of action including civil conspiracy, intentional wrongs, intentional torts, negligence, gross negligence, fraud, and unconscionable conduct; each of which and all of which resulted in actual damages as well as punitive damages to Grinnell, Jr.

In the first amended original petition, the numerous plaintiffs alleged that the defendant knew, or in the exercise of ordinary care and diligence, should have known that the cigarettes that it had designed, manufactured, marketed and sold were dangerous products and contained dangerous ingredients and harmful substances capable of causing injury and death to the intended consumers of its cigarette products, which consumers used these products in the manner intended to be used.

The plaintiffs additionally set forth that the defendant knew or should have known that the cigarettes it made could not be used safely; but, nevertheless, the manufacturer represented to the users of its cigarettes that the cigarettes were not harmful, that the cigarettes were not dangerous, and the cigarettes were not capable of causing injury or death to the users. On the contrary, it was alleged that the manufacturer made every effort to conceal and to hide certain material facts concerning the dangers of and the defects of the cigarettes made by ATC. The manufacturer made no effort to remove the toxic substances and the dangerous substances from its products although it knew of said toxic and dangerous substances or should have known of the same.

Fraud was pleaded against the defendant below in that it had designed and manufactured and sold defective products which were unreasonably dangerous when used by users in the cigarettes intended use; and therefore, the defendant was responsible for damages caused by such dangerous and defective products.

The plaintiffs in this additional pleading invoke the doctrine of strict liability, pleading under section 402A of the RESTATEMENT (SECOND) OF TORTS as the same was adopted by the Supreme Court of Texas. In addition, the plaintiffs alleged that the defendant (manufacturer) had expressly and impliedly warranted to the public as well as to Grinnell, Jr., that its product, the cigarettes, were of merchantable quality and that the cigarettes were safe and the cigarettes were fit for their intended use and fit for the purpose for which they were intended to be used under ordinary conditions and in an ordinary manner. The pleadings stated that Grinnell, Jr., relied upon these express and implied warranties and suffered injury and actual death as a proximate result of the breach of these implied warranties and express warranties.

There was a count of negligence stating that the defendant below was negligent in the design of and in the manufacture of and in the marketing of its cigarettes.

The defendant, ATC, after answering the plaintiffs' pleadings filed a motion for partial summary judgment. This first motion addressed the plaintiffs' claims with respect to smoking and health wherein the plaintiffs challenged the adequacy of the warnings placed on cigarette packages pursuant to the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1340. And ATC attacked the plaintiffs' challenging of the propriety of the tobacco company's actions with respect to the advertising and promotion of the cigarettes. The tobacco company alleged that all of such claims of the plaintiffs were preempted by the Federal Cigarette Labeling and Advertising Act.

The plaintiffs filed a response to such motion for partial summary judgment. The trial court considered the matter and later entered an order granting the defendants' motion for partial summary judgment disallowing all of the plaintiffs' claims challenging the adequacy of the congressionally mandated warnings on cigarette packages and the propriety of ATC's advertising and promotions since the date of January 1, 1966.

Subsequent to the action in January of 1966, in February of 1989 ATC filed another motion for summary judgment to dismiss all of the plaintiffs' post-1965 claims. This later pleading was based on the ground that all such claims were totally preempted by the Federal Cigarette Labeling and Advertising Act. The plaintiffs filed a response and filed their second amended original petition. On April 11, 1989, the trial court signed and entered an order granting the defendant's motion for summary judgment which dismissed all of the plaintiffs' post-1965 claims.

Summary judgments are reviewed de novo in accordance with the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of...

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6 cases
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    • United States
    • Alabama Supreme Court
    • 30 Junio 2003
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    ...three motions and dismissed the Grinnells' suit. The court of appeals reversed the trial court's judgment and remanded the entire case. 883 S.W.2d 791. When reviewing a summary judgment, we follow these well-established rules: (1) The movant has the burden of showing that there is no genuin......
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