Gilboy v. American Tobacco Co.

• Decision Date: 14 November 1990
• Docket Number: Nos. CA,s. CA
• Court: Court of Appeal of Louisiana — District of US
• Parties: Robert C. GILBOY 1 v. AMERICAN TOBACCO COMPANY; R.J. Reynolds Tobacco Company; Lorillard, Inc.; The Tobacco Institute, Inc. and K & B Louisiana Corporation 2 .90 0696, CA 90 0697. 572 So.2d 289, 59 U.S.L.W. 2356

Page 289

572 So.2d 289

Robert C. GILBOY ¹ v. AMERICAN TOBACCO COMPANY; R.J. Reynolds Tobacco Company Lorillard, Inc.; The Tobacco Institute, Inc. and K & B Louisiana Corporation ² Nos. CA 90 0696, CA 90 0697.

572 So.2d 289, 59 U.S.L.W. 2356

Court of Appeal of Louisiana First Circuit.

Nov. 14, 1990.

Writ Granted Jan. 31, 1991.

George R. Covert, Baton Rouge, for plaintiff-appellant Robert C. Gilboy.

Curtis R. Boisfontaine, New Orleans, for defendant-appellee The American Tobacco Co.

Gary R. Long, Kansas City, Mo., John M. McCollam, New Orleans, for defendant-appellee Lorillard, Inc.

Charles L. Chassaignac, New Orleans, Theodore M. Grossman, Cleveland, Ohio, for defendant-appellee R.J. Reynolds Tobacco Co.

Henry D. Sallassi, Jr., Baton Rouge, for defendant-appellee K and B, Inc.

K. Eric Gisleson, New Orleans, for defendant-appellee The Tobacco Institute, Inc.

Before COVINGTON, C.J., and LANIER and VIAL LEMMON, ^* JJ.

COVINGTON, Chief Judge.

Plaintiff-appellant Robert C. Gilboy, Sr. brought an action against the American Tobacco Company, R.J. Reynolds Tobacco Company, Lorillard, Inc., The Tobacco Institute, Inc. and K & B Louisiana Corporation, for damages due to serious illness allegedly brought about because of a lifetime smoking habit.

Plaintiff's theories of liability are based on negligence, products liability, and strict liability via "ultra hazardous activity."

The trial court granted defendants' motion for summary judgment. Mr. Gilboy appeals. We affirm.

Robert C. Gilboy suffered a seizure on March 31, 1986. Doctors at Baton Rouge General Hospital diagnosed cancer of the brain and lung. Plaintiff subsequently filed this lawsuit alleging defendants were liable to him because of negligence, ultrahazardous activity, and various theories relating to product liability laws.

Defendants' asserted in their motion for summary judgment that plaintiff failed to state a claim under Louisiana Product Liability Law, and defendants further contend that plaintiff's claims were preempted by federal law, including The Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1331-1340, as amended by the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. Sec. 1331 et seq. (1966), and the supremacy clause of the Constitution of the United States, Art. VI, Sec. 2.

The ultra hazardous activity assertion has no merit. This category covers such activities as pile driving, storage of toxic gas, blasting with explosives, crop dusting with airplanes. These activities contain risks that are reasonable but still dangerous enough that a party undertaking these activities will assume the consequences for injuries to others. These injuries are caused by the activity itself. Unlike any of these activities, smoking cigarettes is a simple consumer decision entered into with warnings of the possible consequences. It is not an activity in any way related to an ultrahazardous activity.

Considering plaintiff's products liability theory of defendants' liability, we note that plaintiff has not pointed to a single case where recovery was allowed in this type of lawsuit. Products liability is a theory of recovery that in general terms requires manufacturers and sometimes distributors or others involved in placing the product before the public, to compensate purchasers, users or perhaps even bystanders, for damages suffered, as a result of defects in the product. If a product has a defective condition that makes use of the product unreasonably dangerous, recovery will be allowed.

Products liability cases are numerous in Louisiana with liability imposed on a wide variety of defendants; see, e.g. Storey v. Lambert's Limbs & Braces Inc., 426 So.2d 676 (La.App. 1st Cir.1982), writ denied, 433 So.2d 152 (La.1983). However, absent from this spectrum of defendants are cigarette manufacturers. This is due in part to the wide spread knowledge that smoking cigarettes is hazardous to one's health. Cigarettes do cause harm. But they do so for the obvious reasons and not as the result of a hidden defect or dangerous condition that catches the user unaware.

We note that in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 114 (La.1986), the court stated:

Although a product is not unreasonably dangerous per se or flawed by a construction defect, it may still be an unreasonably dangerous product if the manufacturer fails to adequately warn about a danger related to the way the product is designed. A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. [Emphasis added].

* * * * * *

Mr. Gilboy knew prior to 1966 (Congressional Labeling Act) that cigarettes were hazardous to one's health. The dangers of smoking were known to Mr. Gilboy years ago and these dangers are now known by the public in general. Moreover, Congress took action in 1966 and required cigarette manufacturers to carry warning labels.

In referring to the Labeling Act in a similar case, Pennington v. Vistron Corp., 876 F.2d 414 (5th Cir.1989), the federal Fifth Circuit concluded:

... We hold that the Act preempts those claims that challenge the adequacy of the warning on cigarette packages after 1965, or suggest that the tobacco companies had a duty to provide warnings in addition to the warning mandated by Congress, or question the propriety of the tobacco companies' advertising and promotional activities. We also conclude, however, that the preemptive scope of the Act is not so broad to encompass every possible claim of injury arising from the smoking of cigarettes after 1965. We find that Mrs. Pennington's contention that cigarettes are unreasonably dangerous per se under Louisiana law is not preempted.

The court in Pennington, having opened the door to possible classification of cigarettes as unreasonably dangerous per se under Louisiana law, upheld the defendant's motion for summary judgment on factual grounds relating to plaintiff's lack of proof as to causation.

We determine as a matter of law that cigarettes are products that are not unreasonably dangerous per se.

In the Halphen, supra, where the unreasonably dangerous per se category was discussed, our supreme court stated:

A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product.... Under this theory, the plaintiff is not entitled to impugn the conduct of the manufacturer for its failure to adopt an alternative design or affix a...