Laschke v. Brown & Williamson Tobacco Corp., No. 2D99-2081.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: CAMPBELL, Acting Chief.
• Citation: 766 So.2d 1076
• Docket Number: No. 2D99-2081.
• Decision Date: 30 June 2000
• Parties: Jane LASCHKE and Rudolph Laschke, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, individually and as successor by merger to The American Tobacco Company, a foreign corporation, and Lorillard Tobacco Company, a foreign corporation, Appellees.

766 So.2d 1076

Jane LASCHKE and Rudolph Laschke, Appellants,
v.
BROWN & WILLIAMSON TOBACCO CORPORATION, individually and as successor by merger to The American Tobacco Company, a foreign corporation, and Lorillard Tobacco Company, a foreign corporation, Appellees

No. 2D99-2081.

District Court of Appeal of Florida, Second District.

June 30, 2000.

Rehearing Denied August 10, 2000.

766 So.2d 1077

Howard M. Acosta, St. Petersburg, for Appellants

Joseph W. Hatchett, C. Lawrence Stagg and Margaret D. Mathews of Akerman, Senterfitt & Eidson, P.A., Tampa, and Kenneth J. Reilly of Shook, Hardy & Bacon, L.L.P., Miami, for Appellee Lorillard Tobacco Company.

Daniel F. Molony, Richard M. Zabak and Michael P. Winter of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, and William E. Hoffmann, Jr. of King and Spalding, Atlanta, Georgia, for Appellee Brown & Williamson Tobacco Company.

CAMPBELL, Acting Chief Judge.

Appellants, Jane and Rudolph Laschke (the Laschkes), challenge the trial court's final summary judgment entered in favor of Appellees, Lorillard Tobacco Company and Brown & Williamson Tobacco Corporation, individually and as a successor by merger to The American Tobacco Company (collectively Appellees). We affirm in part and reverse in part.

The Laschkes' second amended complaint seeks damages for injuries suffered by Jane Laschke allegedly due to prolonged cigarette smoking. The complaint alleges that Mrs. Laschke began smoking in 1956 at the approximate age of sixteen. She continued smoking until she was diagnosed with throat cancer in 1995. Discovery indicates that Mrs. Laschke smoked Appellees' brands of cigarettes from 1956 through 1972 and other brands until 1995.

All of the counts of the Laschkes' second amended complaint are based on product liability theories. The Laschkes sought recovery from Appellees in three counts: Count I for negligence, including allegations of negligent design resulting in an inherently dangerous product unfit for the purpose for which it was manufactured and marketed, and failure to warn of the dangers posed by cigarettes as an inherently dangerous product; Count III for strict liability, including allegations of defective design resulting in an inherently dangerous product, and failure to warn of the dangers inherent in cigarette smoking; and Count V for conspiracy to commit fraud, including allegations of both misrepresentation of material facts and concealment of material facts.

The posture of this case before us makes meaningful review of the final summary judgment difficult to say the least. Appellees' motions sought final summary judgment based on eight different legal grounds. No one ground is dispositive of the entire case. The final summary judgment entered by the trial court contains no findings concerning any of the eight grounds raised. Rather, without any discussion of the issues raised by either party, the court simply entered summary judgment for Appellees "based upon all of the grounds asserted and argued...." Neither of the parties chose to provide this court with a transcript of the hearing on the motion for summary judgment. In the absence of a transcript of the hearing and a reasoned discussion of the issues, we are left with no meaningful legal analysis to review.

Despite these deficiencies, or perhaps because of them, we conclude that the record before us demonstrates that there are genuine issues of material fact that remain to be resolved. A defendant's motion for...