Buckingham v. R.J. Reynolds Tobacco Co.
| Decision Date | 29 May 1998 |
| Docket Number | No. 95–350.,95–350. |
| Citation | 142 N.H. 822,713 A.2d 381 |
| Court | New Hampshire Supreme Court |
| Parties | Bruce BUCKINGHAM, Administrator of the Estate of Roxanne Ramsey–Buckingham v. R.J. REYNOLDS TOBACCO CO. and others. |
Stephen R. Fine & Associates, Manchester (Stephen R. Fine, on the brief and orally), for plaintiff.
Ransmeier & Spellman, Concord (Steven E. Hengen and R. Matthew Cairns, on the defendants' joint brief), and Jones, Day, Reavis & Pogue, Cleveland, OH (Richard G. Stuhan, on the defendants' joint brief), for defendant R.J. Reynolds Tobacco Co.
Sulloway & Hollis, Concord (Edward M. Kaplan, on the defendants' joint brief and orally for all defendants), and Shook, Hardy & Bacon, Kansas City, MO (Walter L. Cofer, on the defendants' joint brief), for defendant Lorillard Tobacco Company.
Devine, Millimet & Branch, Manchester (Matthias J. Reynolds, on the defendants' joint brief), for defendant Philip Morris Incorporated.
McNeil & Taylor, Dover (R. Peter Taylor, on the defendants' joint brief), and Latham & Watkins, New York City (Francis K. Decker and James Copley, on the defendants' joint brief), for defendant Liggett & Myers, Inc. Ouellette, Hallisey, Dibble & Tanguay, Dover (Dennis L. Hallisey, on the defendants' joint brief), and King & Spalding, Atlanta, GA (William E. Hoffman and David Onorato, on the defendants' joint brief), for defendant Brown & Williamson Tobacco Corporation.
Upton, Sanders & Smith, Concord (Russell F. Hilliard, on the defendants' joint brief), and Chadbourne & Parke, New York City (Bruce G. Sheffler and Debra Barnhart, on the defendants' joint brief), for defendant The American Tobacco Company.
Sanders & McDermott, Hampton (Wilfred L. Sanders, Jr., on the defendants' joint brief), for defendant Prescott Farms, Inc.
The plaintiff, Bruce Buckingham, administrator of the estate of Roxanne Ramsey–Buckingham, appeals an order of the Superior Court (Mohl , J.) granting the motion to dismiss filed by the defendants, R.J. Reynolds Tobacco Co., Philip Morris Incorporated, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, The American Tobacco Company, Liggett & Myers, Inc., and Prescott Farms, Inc. The plaintiff appeals the trial court's rulings that bystanders may not recover on a theory of strict liability in a product liability suit, that the plaintiff failed to allege that the defendants' products were defective, and that New Hampshire does not recognize a tort claim based on the Restatement (Second) of
§ 389 (1965). We affirm in part, reverse in part, and remand.
Count I of the plaintiff's writ of summons is a strict liability claim based on the Restatement (Second) of Torts § 402A. The plaintiff alleged that Ms. Ramsey–Buckingham was diagnosed with terminal lung cancer
resulting from her exposure to environmental tobacco smoke (ETS) from cigarettes manufactured or sold by the defendants. Although Ms. Ramsey–Buckingham did not smoke cigarettes or use tobacco products, the plaintiff asserts that it was foreseeable by the defendants that bystanders, like Ms. Ramsey–Buckingham, would be exposed to ETS. The plaintiff contends that the cigarettes made or sold by the defendants were defective because they were in an unreasonably dangerous condition, in that the cigarettes were dangerous beyond the expectations of the ordinary consumer and the utility of smoking did not outweigh the risk caused by ETS. The plaintiff did not allege a defect in the cigarettes other than their dangerous character.
Count II of the plaintiff's claim is based on the Restatement (Second) of Torts § 389. The plaintiff additionally alleged that the defendants knew or should have known that it was unlikely that their products would be made reasonably safe prior to their customary and intended use, and that it was foreseeable that Ms. Ramsey–Buckingham would be endangered by ETS from the defendants' cigarettes.
The defendants moved to dismiss for failure to state a claim upon which relief may be granted. The trial court dismissed count I because, inter alia , the writ failed to allege separately that the cigarettes were defective and that the defect caused the cigarettes to be unreasonably dangerous.
As for count II, although the trial court acknowledged that the facts alleged by the plaintiff fall squarely within a claim based on section 389 of the Restatement , the court dismissed this claim because New Hampshire has not recognized a cause of action based on section 389.
"In reviewing a motion to dismiss for failure to state a claim upon which relief may be granted, we assume the truth of the facts alleged in the plaintiff's pleadings and construe all reasonable inferences in the light most favorable to him." MacLeod v. Ball, 140 N.H. 159, 160, 663 A.2d 632, 633 (1995). If the facts pled do not constitute a basis for legal relief, we will uphold the granting of the motion to dismiss. See Higgins v. Cushman S. Colby, C.P.A., P.A. , 140 N.H. 765, 767, 674 A.2d 971, 973 (1996).
With regard to count I of the plaintiff's writ, we hold that the plaintiff has failed to state a claim upon which relief may be granted because the complaint does not allege that the product was "defective" and "unreasonably dangerous" as separate elements. Instead, the plaintiff alleges only that "[t]he cigarettes sold by the defendants were defective or unsuitable at the time of sale in that they were in an unreasonably dangerous condition for innocent bystanders such as the plaintiff." The plaintiff's argument that "defect" is not a "separate and distinct element of proof" from the "unreasonably dangerous" element is not borne out by the language of section 402A, the history of its adoption, or our case law.
We have adopted the tort of strict liability as set out in the Restatement (Second) of Torts § 402A. See Buttrick v. Lessard, 110 N.H. 36, 38–39, 260 A.2d 111, 113 (1969). Section 402A imposes liability for selling "any product in a defective condition unreasonably dangerous to the user or consumer" when the product causes injury to the user or consumer. In other words, "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." Gianitsis v. American Brands, Inc., 685 F.Supp. 853, 856 (D.N.H.1988).
If the plaintiff were correct that a product is per se defective if it is unreasonably dangerous, then it would be redundant for section 402A to include both the terms "defective" and "unreasonably dangerous."
[T]he operative phrase used in § 402A of the Restatement (Second) of Torts — a product ‘in a defective condition unreasonably dangerous' — was deliberately chosen to make it clear that the product must be defective, and that the manufacturer of a product that may involve some danger, but that is not defective, will not be held liable.
Patterson v. Gesellschaft , 608 F.Supp. 1206, 1212 (N.D.Tex.1985) (footnote omitted); see Gianitsis, 685 F.Supp. at 858. See generally American Law Institute, Proceedings 1961 87–88 (discussing whether an unreasonably dangerous product was per se defective).
Comment i to section 402A supports this reading of strict liability: "The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer." Restatement (Second) of Torts § 402A comment i at 352. The comment cites several products, such as tobacco, whiskey, and butter, that may be dangerous in their intended form, but notes that liability will not be imposed absent an additional ingredient which the ordinary consumer would not expect to be present. See id. at 352–53.
When the plaintiff cannot allege that something is "wrong" with the product, strict liability should not be used as a tool of social engineering to mandate that manufacturers bear the entire risk and costs of injuries caused by their products. See Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 806, 395 A.2d 843, 845 (1978). Accordingly, because the plaintiff has failed to allege separately that cigarettes are "defective" and "unreasonably dangerous," he has failed to state a claim upon which relief may be granted. Cf . Bagley v. Controlled Environment Corp., 127 N.H. 556, 559–60, 503 A.2d 823, 825–26 (1986). Therefore, we need not decide whether bystanders may recover under section 402A.
Count II of the plaintiff's writ was based on the Restatement (Second) of Torts § 389. The trial court dismissed this count on the grounds that New Hampshire law does not recognize a claim based on section 389, which provides:
Restatement (Second) of Torts § 389.
The scope of liability under section 389 has been summarized as follows:
Under section 389 a supplier of a chattel who has informed the persons to whom he supplied the chattel of its dangerous condition may be held liable to persons ignorant of the dangerous condition of the chattel if he knows or has reason to know that the chattel is unlikely to be made reasonably safe before being put to its expected use. If the supplier of a chattel knows or has information from which a person of reasonable intelligence would infer that it is unlikely that the chattel...
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