Kyte v. Philip Morris Inc.

• Decision Date: 25 July 1990
• Citation: 556 N.E.2d 1025,408 Mass. 162
• Parties: , 59 USLW 2119, Prod.Liab.Rep. (CCH) P 12,607 Theresa KYTE et al. 1 v. PHILIP MORRIS INCORPORATED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1025

556 N.E.2d 1025

408 Mass. 162, 59 USLW 2119,

Prod.Liab.Rep. (CCH) P 12,607

Theresa KYTE et al. ¹ v. PHILIP MORRIS INCORPORATED.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 7, 1989.

Decided July 25, 1990.

Hadrian R. Katz, Washington, D.C. (Henry C. Dinger, Boston, with him), for defendant.

Edward Greer, Cambridge, for plaintiffs.

James M. Shannon, Atty. Gen. and Susan Papaneck McHugh, Asst. Atty. Gen., for Com., amicus curiae, submitted a brief.

Garry Van Inge and Eric A. Nissen, Boston, for estate of George Kotler, amicus curiae, submitted a brief.

Alan B. Morrison, Washington, D.C., for American Cancer Society and others, amici curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

In the spring of 1987, the plaintiffs, Theresa Kyte and Sean Cann, each through a parent, brought this action against Philip Morris Incorporated (Philip Morris), alleging that Philip Morris was liable to them on several theories because they sustained injuries from the consumption of cigarettes that had been manufactured by Philip Morris and sold to them while they were minors. This case is before us because a Superior Court judge, after denying Philip Morris's motion for summary judgment, reported the propriety of his ruling to the Appeals Court (Mass.R.Civ.P. 64, 365 Mass. 831 [1974] ), and we allowed the plaintiffs' application for direct appellate review. ²

We summarize uncontroverted facts appearing in the summary judgment record. Later in this opinion, we set forth additional undisputed facts bearing on particular issues. Theresa Kyte smoked her first cigarette at the age of twelve, in order to "look more grown up [and] to be like [her] friends." Over the next six years, Kyte's cigarette consumption increased to as much as two packs of cigarettes a day before falling to an average of one pack of cigarettes every day. Kyte has been unable to stop smoking despite "twenty to fifty" attempts to do so. Sean Cann began smoking cigarettes out of "curiosity" during the summer of 1985, when he was fifteen years old. By the time the complaint in this case was filed, Cann was smoking approximately one-third to one-half a pack of cigarettes each day. Cann's three attempts to quit smoking have been unsuccessful. Each smoked Marlboro and Parliament cigarettes manufactured by Philip Morris. They claim that, as minors, they repeatedly purchased Marlboro and Parliament brand cigarettes at Store 24 convenience stores in violation of G.L. c. 270, § 6 (1988 ed.), which makes illegal the sale of tobacco in any form to a minor. ³ Because of physical responses to their smoking and because of their addiction, the plaintiffs claim to have incurred medical expenses, pain and suffering, emotional distress, and a diminished capacity to carry out the normal activities of a minor. They seek monetary damages and equitable relief to prevent future illegal sales of cigarettes to minors in the Commonwealth.

The plaintiffs now assert four theories under which Philip Morris may be liable to them, even though it is conceded that Philip Morris did not sell its cigarettes to them directly. The plaintiffs claim that Philip Morris (1) engaged in a civil conspiracy with Store 24 to violate G.L. c. 270, § 6, (2) negligently entrusted cigarettes to them as minors, (3) was in breach of implied warranties under G.L. c. 106, § 2-314 (1988 ed.), and (4) engaged in a deceptive act in violation of G.L. c. 93A (1988 ed.). Philip Morris was entitled to summary judgment on the first two of these theories but not on the latter two. ⁴

The summary judgment record shows that the plaintiffs, while minors, purchased cigarettes manufactured by Philip Morris from Store 24. They purchased no cigarettes directly from Philip Morris. Store 24 purchased all the cigarettes sold in its stores from wholesalers not owned by Philip Morris. For the purposes of summary judgment, we must assume the following: There is a pattern and practice in Massachusetts of selling Marlboro cigarettes to thousands of minors each year. Those sales represent a substantial portion of the sales of Marlboro cigarettes in Massachusetts. Philip Morris was on notice of this pattern and practice, and such sales were reasonably foreseeable. The plaintiffs are addicted to cigarettes and have thereby been injured.

The Superior Court judge reported his decision to the Appeals Court because "the denial of Philip Morris's motion for summary judgment so affects the merits of the controversy and is of such general legal significance that the correctness of that ruling ought to be determined by the Appeals Court." "Such a determination," he stated, "may also save the time and expense of considerable discovery." The plaintiffs do not contend that they were given an inadequate opportunity in the Superior Court to prepare the record for summary judgment purposes and, in any event, may not properly so contend for the first time on appeal. First Nat'l Bank of Boston v. Slade, 379 Mass. 243, 244-245, 399 N.E.2d 1047 (1979). See Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974). The judge's comment that the time and the expense of discovery might be saved if Philip Morris is in fact entitled to summary judgment on the undisputed material facts is a fair characterization of the circumstances in which summary judgment should be entered despite the existence of numerous nonmaterial factual disputes that would be contested if the case were to be tried.

1. Civil conspiracy. Philip Morris is not liable to the plaintiffs for civil conspiracy. The plaintiffs concede that Philip Morris did not enter into any express agreement with Store 24. They claim, however, that Philip Morris's behavior shows a pattern of concerted conduct knowingly undertaken and sufficient to support a claim for civil conspiracy.

The plaintiffs' conspiracy count relies on two theories. They assert a "common design" theory under which it is claimed Philip Morris, in concert with or pursuant to a common design with Store 24, committed tortious acts, namely, sold cigarettes to minors in violation of law. The plaintiffs assert independently that Philip Morris gave substantial assistance to or encouraged Store 24's conduct, knowing that such conduct constituted a breach of duty to minor purchasers of Philip Morris cigarettes. These two approaches are expressed in Restatement (Second) of Torts § 876(a) and (b) (1979), ⁵ which the parties accept as stating the governing principles of civil conspiracy in the Commonwealth. We shall not pause to determine whether the principles of § 876 and the law of the Commonwealth are, in all respects, in complete accord. See Gurney v. Tenney, 197 Mass. 457, 466, 84 N.E. 428 (1908) (alluding to concert of action theory similar to § 876[a] ); Nelson v. Nason, 343 Mass. 220, 222, 177 N.E.2d 887 (1961) (following § 876[b] ); Brown v. Perkins, 1 Allen 89, 98 (1861) (language similar to § 876[b] ); Stock v. Fife, 13 Mass.App.Ct. 75, 82 n. 10, 430 N.E.2d 845 (1982) (commenting on inapplicability of § 876[b] in circumstances). See also Payton v. Abbott Labs, 512 F.Supp. 1031, 1034-1035 (D.Mass.1981).

The record shows that there was no common design or concerted action between Philip Morris and Store 24. In the face of Philip Morris's uncontroverted record material no inference of a common design could be justified. In addition to the undisputed fact that Philip Morris made no direct sales to the plaintiffs or to Store 24, the record shows the following additional facts. Philip Morris has no record of any complaint being filed regarding the sale of any Philip Morris tobacco product to any minor in Massachusetts by Store 24 or any other retailer. Philip Morris has no control over the entities that sell its products to retailers and consumers. Store 24 purchases all of its cigarettes from wholesalers, has contact with Philip Morris personnel only in regard to matters such as displays and the freshness of cigarettes being sold, and has never had any communication with Philip Morris concerning sales of cigarettes to minors. Against this, the plaintiffs argue that the well-known, widespread sales of cigarettes to minors in the Commonwealth justify an inference of an implied agreement between Philip Morris and Store 24 to promote those sales.

We do not deny that an inference of an implied agreement could properly be drawn from the conduct of two or more parties. See e.g., Orszulak v. Bujnevicie, 355 Mass. 157, 158-159, 243 N.E.2d 897 (1969) (jury could infer from two drivers' conduct an implied agreement to race); Nelson v. Nason, 343 Mass. 220, 222, 177 N.E.2d 887 (1961) (same); Attorney Gen. v. Tufts, 239 Mass. 458, 494, 131 N.E. 573 (1921) ("Common purpose may be inferred from concerted action converging to a definite end"). In Direct Sales Co. v. United States, 319 U.S. 703, 705-707, 63 S.Ct. 1265, 1266-1268, 87 L.Ed. 1674 (1943), a tacit understanding was found based on a long course of consistent sales of huge quantities of morphine to a physician. By contrast, Philip Morris knew nothing about Store 24 and its illegal sales of cigarettes that would warrant an inference of concerted action. Philip Morris's affidavits stating that it had no knowledge of illegal sales by Store 24 remain uncontroverted. Philip Morris is entitled to summary judgment against the plaintiffs on the common design theory of conspiracy. ⁶

The plaintiffs' claim of liability for civil conspiracy on the substantial assistance theory also fails because Philip Morris was unaware of any substantial role it played in Store 24's allegedly illegal sales. A general awareness that retail stores sell cigarettes to minors is not sufficient to show the level of knowledge that would give rise to liability for conspiracy. Evidence of the defendant's knowledge of its substantial, supporting role in an unlawful enterprise is required. See Halberstam v. Welch, 705 F.2d...