Kearney v. Philip Morris, Inc., Civil Action No. 92-11079-REK.

• Decision Date: 16 February 1996
• Docket Number: Civil Action No. 92-11079-REK.
• Citation: 916 F. Supp. 61
• Parties: Mary KEARNEY, as Administratrix of the Estates of Maureen O'Neill, Charlene O'Neill, Stacy O'Neill, and Leanne O'Neill, Plaintiff, v. PHILIP MORRIS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

916 F. Supp. 61

Mary KEARNEY, as Administratrix of the Estates of Maureen O'Neill, Charlene O'Neill, Stacy O'Neill, and Leanne O'Neill, Plaintiff, v. PHILIP MORRIS, INC., Defendant.

Civil Action No. 92-11079-REK.

United States District Court, D. Massachusetts.

February 16, 1996.

Stephen R. Fine, Stephen R. Fine & Associates, Manchester, NH, Edward L. Sweda, Jr., Dorchester, MA, for Mary Kearney.

Marshall Simonds, Thomas J. Griffin, Jr., Goodwin, Proctor & Hoar, Boston, MA, Walter L. Cofer, William J. Crampton, Shook, Hardy & Bacon, Kansas City, MO, for Philip Morris Companies Inc. and Philip Morris, Inc.

OPINION

KEETON, District Judge.

I.

Plaintiff, Mary Kearney, brings this diversity action against defendant on behalf of the estates of her daughter (Maureen O'Neill) and three grandchildren (Charlene O'Neill, Stacy O'Neill, and Leanne O'Neill) who died in a house fire on May 27, 1990. The fire was allegedly caused by a Marlboro Light cigarette designed, produced and marketed by defendant, after the father of the children and Maureen's husband, Myles O'Neill, who was intoxicated, dropped a lit cigarette on a couch, left it unattended, and went to bed in another room. Plaintiff's complaint alleges that the defendant's product is defective and unreasonably dangerous in that it has an unreasonably dangerous propensity to ignite upholstered furniture. This claimed defect in design is alleged to constitute negligence, breach of warranty, a violation of Mass. Gen.L. ch. 93A, and to support imposition of liability under Restatement (Second) of Torts §§ 389 and 394.

Pending before the court in this case is the Motion by Philip Morris, Inc., for Judgment on the Pleadings, or in the Alternative, for Summary Judgment (Docket No. 60, filed March 17, 1995) together with numerous supplemental memoranda from defendant and responses from plaintiff.^*

As a prudential matter, I consider the summary judgment basis for defendant's motion and elect not to consider whether defendant might in any event be entitled to a judgment on the pleadings.

For the purposes of advancing its contention that it is entitled to summary judgment under the standards established by Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1 of the Local Rules of the District of Massachusetts, defendant

assumes the following facts: on May 27, 1990, Myles O'Neill dropped a lighted Marlboro Light cigarette onto a piece of upholstered furniture in his home while intoxicated; unaware of his action, he went to bed; and the cigarette ignited the upholstery and started a fire that led to the death of the decedents.

Defendant's Motion (Docket No. 60), p. 1. One further fact that both plaintiff and defendant have assumed for the purposes of the summary judgment motion is that the article of furniture on which Myles O'Neill left the cigarette ("the O'Neill couch") was constructed with an outer covering of thermoplastic material directly over ignition-prone non-flammability treated cotton padding. See Plaintiff's Memorandum of Law (Docket No. 66), p. 5; Defendant's Reply Brief (Docket No. 71), p. 24.

One critical aspect of the plaintiff's theory in this case is that if the allegedly defective Marlboro Light cigarette had been designed according to plaintiff's proposed alternative reduced-ignition-propensity design, the fire would not have occurred. See Plaintiff's Memorandum of Law (Docket No. 66), p. 18; Plaintiff's Complaint ¶ 10 (Docket No. 1).

II.

The purpose of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (quoting Fed. R.Civ.P. 56 advisory committee's note). If the pleadings, depositions, answers to interrogatories, admissions and any affidavits on file show that there is no genuine issue as to a material fact, then the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Where, as here, the moving party does not have the burden of proof at trial, that party nevertheless must make a showing, by "pointing out to the district court," that the evidence is insufficient to support the nonmoving party's case. Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once this showing has been made, it is up to the nonmoving party to proffer sufficient competent evidence to establish the existence of a genuine issue of material fact. United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992). "Genuine" means that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a "material fact" is one that "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). On issues where the nonmovant bears the burden of proof, he or she must present definite, competent evidence to rebut the motion. See Id. at 256-57, 106 S.Ct. at 2514-15.

III.

A.

The parties agree and the court concludes that the law of Massachusetts is the source to which this court must look for the substantive law to be applied in this case. The rules of law as to the scope of products liability include rules regarding duty and legal cause (including both "cause-in-fact" and other aspects of legal cause).

B.

Looking to Massachusetts law, I must consider, in relation to the claim of breach of warranty by reason of a design defect, what the plaintiff must prove in this case to satisfy the duty and legal cause (including cause-in-fact) elements of the design defect theory of liability for the deaths from smoke inhalation in this case.

Liability for breach of warranty is premised on the principle that "The seller warrants that the product is `fit for the ordinary purposes for which such goods are used.'" Hayes v. Ariens Co., 391 Mass. 407, 462 N.E.2d 273, 277 (1984) (quoting Mass. Gen.L. ch. 106 § 2-314(2)(c)). Thus a breach of warranty can occur if either (1) the product is defectively designed, or (2) foreseeable users are not adequately warned of the dangers associated with its use. Id. For design defect claims, Massachusetts law requires that a plaintiff show that the manufacturer has violated its duty to design products "so that they are reasonably fit for the purposes for which they are intended." Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954, 957 (1978). A product is "reasonably fit" for its purposes if the design avoids the "reasonably foreseeable risks attending the product's use...." Back v. Wickes, 375 Mass. 633, 378 N.E.2d 964, 969 (1978).

In order to succeed in a breach of warranty case under Massachusetts law, a plaintiff must prove that his or her injury was, more probably than not, caused by a defect in the product. See, e.g., Walsh v. Atamian Motors, Inc., 10 Mass.App.Ct. 828, 406 N.E.2d 733, 734 (1980) (buyers of used car who failed to show that probable cause of vehicle's mechanical problems was attributable to a defect in the vehicle at the time of purchase failed to establish claim of breach of warranty). A plaintiff is not bound to exclude every possible cause for injury, but a plaintiff is required to show that, more probably than not, the breach of warranty was a cause of the injury. See Benavides v. Stop & Shop, 346 Mass. 154, 190 N.E.2d 894, 897 (1963).

C.

In this case, plaintiff also makes a negligence claim with respect to design. As in relation to breach of warranty, so also as to a claim of negligent design, in order to succeed under Massachusetts law plaintiff must show that a defect attributable to the manufacturer's negligence was a cause of the injury. Swartz v. General Motors Corp., 375 Mass. 628, 378 N.E.2d 61, 65 (1978). A plaintiff alleging that a product was negligently designed can proceed by showing that the product either was a proximate cause of the injury or was a proximate cause of an enhancement of the injury a person sustained in an otherwise foreseeable accident. Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 596 N.E.2d 318, 322-323 (1992). A plaintiff need not prove the exact cause of the accident or disprove every possible cause, but he or she must show that there is a greater likelihood that the defendant's negligence was a proximate cause of the injury (or enhancement of the injury) than that it was not. Enrich v. Windmere Corp., 416 Mass. 83, 616 N.E.2d 1081, 1084 (1993).

D.

Plaintiff's claim of an alleged violation of Mass.Gen.L. ch. 93A is based on the same breach of warranty and negligence claims described in part B and part C above. See Plaintiff's Complaint ¶ 31 (Docket No. 1). Accordingly, if plaintiff's claims of breach of warranty and negligence fail, plaintiff's Mass. Gen.L. ch. 93A claim also fails.

E.

Plaintiff's claim based upon alleged liability under Restatement (Second) of Torts §§ 389 and 394 (and the contention that these sections are consistent with Massachusetts law) depends also on proof of causation-in-fact. See Restatement (Second) of Torts § 389, Comment (d) (1963-1964) ("the supplier will be liable if, but only if, his conduct is, in law, the cause of bodily injury sustained by another ...").

F.

Causation-in-fact is thus a crucial element to plaintiff's case, under each of the plaintiff's various theories of recovery.

IV.

For reasons explained in Part V. below, I conclude that I need not decide many of the questions briefed and argued in this case, because the plaintiff's case fails to survive the cause-in-fact requirement. Plaintiff must prove that the alleged negligence, or the alleged defect in the cigarette, more probably than not was a cause-in-fact of the injury; otherwise, defendant is entitled to summary judgment as a matter of law. As explained below, plaintiff's evidence is inadequate to support a reasoned finding by a finder of fact that the alleged negligence or the alleged defect of the cigarette was, more probably than not, a...