Adamo v. Brown & Williamson Tobacco Corp.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Smith
• Citation: Adamo v. Brown & Williamson Tobacco Corp., 900 N.E.2d 966, 11 N.Y.3d 545, 872 N.Y.S.2d 415 (N.Y. 2008)
• Decision Date: 16 December 2008
• Docket Number: No. 205,205
• Parties: Frank ADAMO, as Executor of Norma Rose, Deceased, et al., Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as Successor in Interest to The American Tobacco Company, et al., Respondents, et al., Defendant.

900 N.E.2d 966

11 N.Y.3d 545

Frank ADAMO, as Executor of Norma Rose, Deceased, et al., Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, as Successor in Interest to The American Tobacco Company, et al., Respondents, et al., Defendant.

No. 205

Court of Appeals of New York.

December 16, 2008.

Whiteman Osterman & Hanna LLP, Albany (Howard A. Levine, Alan J. Goldberg, Christopher W. Meyer, William S. Nolan and Christopher M. McDonald of counsel), and Finz & Finz, P.C., Jericho (Stuart L. Finz, Jay L. Feigenbaum and Todd M. Rubin of counsel), for appellants.

Mayer Brown LLP, New York City (Andrew H. Schapiro, Andrew L. Frey, Lauren R. Goldman and Scott A. Chesin of counsel), Joseph W. Bellacosa, Garden City, Arnold & Porter LLP, New York City (Keri L. Arnold and Angela Showalter of counsel), Winston & Strawn LLP (Thomas J. Quigley and Luke A. Connelly of counsel), Chadbourne & Parke LLP (Thomas E. Riley, Ellen Black and Cassandre L. Charles of counsel) and Arnold & Porter LLP, Washington, D.C. (James M. Rosenthal of counsel), for respondents.

Goldberg Segalla LLP, Buffalo (Neil A. Goldberg, Matthew S. Lerner and Bryan D. Richmond of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.

James A. Henderson, Jr., Ithaca, for Professor James A. Henderson, Jr., amicus curiae.

Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C. (Rachel Li Wai Suen of counsel), and National Chamber Litigation Center, Inc. (Robin S. Conrad of counsel), for Chamber of Commerce of the United States of America, amicus curiae.

OPINION OF THE COURT

SMITH, J.

Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine. We agree with the Appellate Division that plaintiffs failed to prove an essential element of their case: that regular cigarettes and "light" cigarettes have the same "utility." The only "utility" of a cigarette is to gratify smokers' desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes.

Norma Rose, who died during the pendency of this appeal, smoked for more than 40 years, consuming more than a pack a day of regular cigarettes. Beginning in the late 1960s, the products she smoked were manufactured by the American Tobacco Company and Philip Morris USA Inc. Ms. Rose quit smoking in 1993, and was diagnosed two years later with lung cancer and another condition allegedly caused by smoking. She and her husband brought a number of claims against American Tobacco's successor (Brown & Williamson Tobacco Corporation), Philip Morris and a third company. All their claims except one for negligent product design were dismissed at the trial level and are not now before us.

A jury found that American Tobacco and Philip Morris negligently designed the cigarettes Ms. Rose smoked and, in later phases of the trial, awarded compensatory and punitive damages. The Appellate Division reversed the resulting judgment, with two Justices dissenting, and granted judgment in defendants' favor (53 A.D.3d 80, 855 N.Y.S.2d 119 [2008]). Plaintiffs appeal to us pursuant to CPLR 5601(a), and we now affirm the Appellate Division's order.

In Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 [1983], speaking of a claim of strict product liability, we said: "The plaintiff ... is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." While this is a negligence, not a strict liability, case, similar requirements apply—specifically, plaintiffs here had to prove that "it was feasible to design the product in a safer manner." This means, to use again the language of Voss, the plaintiffs must show "the potential for designing ... the product so that it is safer but remains functional" (id. at 109, 463 N.Y.S.2d 398, 450 N.E.2d 204).

Here, plaintiffs presented evidence from which a jury could find that light cigarettes—cigarettes containing significantly lower levels of tar and nicotine—are "safer" than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain "functional." The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function. Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes—indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of consumers continue to prefer regular cigarettes.

It is not necessary...