Lamke v. Futorian Corp., s. 57077

• Decision Date: 04 June 1985
• Docket Number: Nos. 57077,57479,s. 57077
• Citation: 709 P.2d 684
• Parties: Donna LAMKE, Appellant, v. FUTORIAN CORPORATION, et al., Appellees.
• Court: Oklahoma Supreme Court

Page 684

709 P.2d 684

1985 OK 47

Donna LAMKE, Appellant, v. FUTORIAN CORPORATION, et al., Appellees.

Nos. 57077, 57479.

Supreme Court of Oklahoma.

June 4, 1985.

As Changed June 6, 1985.

As Corrected June 12, 1985.

Rehearing Denied Oct. 22, 1985.

Norman, Wallace, Hays, Isaacs & McNulty by John W. Norman, Oklahoma City, for appellant.

Looney, Nichols, Johnson & Hayes by Edwin F. Garrison and Robert D. Looney, Jr., Oklahoma City, for appellee Futorian Corp.

Shook, Hardy & Bacon, Kansas City, Mo., and McAfee & Taft by Robert H. Gilliland, Jr., and Joseph H. Bocock, Oklahoma City, for appellee Philip Morris Inc.

HODGES, Justice.

Appellant-Plaintiff Lamke appeals from judgments of the trial court in which demurrers to her Third Amended Petition were sustained as to her cause of action against Appellees-Defendants Philip Morris Incorporated and Futorian Corporation. The trial court expressly dismissed the plaintiff's action against these defendants, and these consolidated appeals followed.

This lawsuit has its genesis in a fire which allegedly started when a cigarette manufactured by Philip Morris Incorporated fell and ignited a sofa manufactured by Futorian Corporation while Mrs. Lamke [appellant-plaintiff] was on the sofa. It resulted in severe burns to much of Mrs. Lamke's body. She brought this action against these two defendants, along with other defendants not parties to this appeal, alleging that defects in the manufacturers' respective products rendered those products unreasonably dangerous, and caused her injuries. After the trial court sustained the manufacturers' separate demurrers to her Third Amended Petition, it dismissed the plaintiff's action against them, foreclosing any right to further amend. ¹

In testing the sufficiency of the petition by a demurrer under the Code of Procedure in effect at the time the question came to be presented, we are guided by long-standing principles recognized in numerous cases including Mohoma Oil Co. v. Ambassador Oil Corp., 474 P.2d 950 (Okla.1970) and Williams v. City of Bristow, 350 P.2d 484 (Okla.1960). Under those rules a demurrer admits the truth of all facts well pleaded together with all inferences which may be legally drawn therefrom, and the petition is to be liberally construed in favor of the plaintiff. The demurrer does not admit facts which are not pleaded, or conclusions of fact or law which are not supported by the allegations of evidentiary facts in the petition. If the plaintiff is not entitled to recover under the facts properly alleged in the petition, the demurrer should be sustained. Groves v. Board of County Commissioners, Washita County, 429 P.2d 994 (Okla.1967).

Since different operative facts allegedly give rise to the liability of each of the appellees-defendants in this case, we must examine the latest version of the petition to determine, under the test noted above, whether a cause of action has been stated against each appellee-defendant.

Plaintiff premises her claim against each defendant on strict liability under Manufacturers' Products Liability, and upon negligence. With regard to the strict liability claim, both defendants argue that the petition does not allege that the plaintiff's injuries resulted from a defect which rendered that defendant's product "unreasonably dangerous" as required by Kirkland v General Motors Corp., 521 P.2d 1353 (Okla.1974). In Kirkland we defined the phrase "unreasonably dangerous" to mean:

"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to community as to its characteristics."

That test, applied in this context, means that if Morris' cigarette was more likely, than expected by the consumer, to cause this fire because of defects, then it was unreasonably dangerous. By the same token, if the sofa was more likely, than expected by the ordinary consumer, to ignite because of some defect, the sofa was unreasonably dangerous. That the product be rendered "unreasonably dangerous" by the defect is an essential requirement for pleading a cause of action in Manufacturers' Products Liability, Kirkland, supra. Thus, if the plaintiff has not sufficiently alleged that the cigarette was more likely, than would be expected by the ordinary consumer, to cause this fire, and that the sofa was more likely, than would be expected by the ordinary consumer, to be set ablaze, she has not alleged a cause of action under this theory.

As to the cigarette manufacturer, the plaintiff alleged that the cigarettes did not meet this consumer expectation test because they were not

"... manufactured within the state of the art and were dangerous to an extent beyond that contemplated by the ordinary user, including the plaintiff, in that other cigarettes manufactured before, at or near, and after the time of manufacture of said cigarettes did not have added to them chemicals as alleged above, were not manufactured with paper as alleged above, and would not have caused ignition of the couch in question; and in that said cigarettes did not incorporate manufacturing techniques such as represented in patents on file with the U.S. Patent Office, many of which said patents were presented directly to and rejected by defendant Philip Morris. Two of such patents are attached hereto as Exhibits 'A and B.' "

The plaintiff had previously alleged that the cigarettes were defective because they had additional chemicals and special paper which prolonged burning, increased the intensity of the fire of the cigarettes and caused the cigarette to ignite the couch. She also alleged that the cigarette should have been self-extinguishing.

None of the plaintiff's allegations, if deemed true, establish that these cigarettes were more likely to cause the fire in question than might be anticipated by the ordinary consumer. In her brief, plaintiff argues that she established this fact since she says this cigarette was not an "ordinary" cigarette, but had been chemically treated to increase its intensity and prolong its fire between puffs. That argument is not supported by the allegations of the petition.

Plaintiff did not allege that "ordinary" cigarettes had not been so treated, nor that the defendant's cigarettes were different from the cigarettes with which the ordinary consumer is familiar. The plaintiff alleges only that at the time of the manufacture of these cigarettes there were other cigarettes which had not been treated chemically as had the defendant's cigarettes. Apparently, the plaintiff would hold the manufacturer responsible if his product is not as safe as some other product on the market. That is not the test in these cases. Only when a defect in the product renders it less safe than expected by the ordinary consumer will the manufacturer be held responsible.

This is particularly true in cases such as the instant case where the "defect" alleged is the failure to minimize an obvious danger which is inherent in the product itself. In order for a cigarette to be used, it must burn. The simple allegation that the cigarette should have been self-extinguishing or that some other cigarettes would not have burned as long, nor as intensely, does not establish that the cigarettes involved in this case were more likely to cause the fire than might be expected by the consumer. The plaintiff has not alleged sufficient facts to state a cause of action in Manufacturers' Products Liability against defendant Philip Morris.

By the same analysis, the plaintiff's petition is insufficient with regard to Manufacturers' Products Liability on the part of the sofa manufacturer. Plaintiff alleges only that the sofa was "unreasonably dangerous" because it was not sufficiently flame retardant, and because Futorian Corporation issued no warning as to this defect. No allegations are made which would support a conclusion that the ordinary consumer expects a sofa to be flame retardant to the degree suggested by the plaintiff, and the petition, if deemed true, does not establish that the sofa in question was any more likely to be ignited than is expected by the ordinary consumer.

Plaintiff also claims, in addition to an action for Manufacturers' Products Liability, that defendants negligently caused the accident and resulting injuries. Plaintiff alleges the defendant, Philip Morris, added certain chemicals into the manufacturing process in order to promote prolonged burning of their cigarettes. Likewise, they claim the defendant, Futorian Corporation, negligently manufactured and sold a sofa that was not flame retardant.

It is common knowledge a lighted cigarette is potentially dangerous. It can cause fire and if accidentally placed on a couch can create a flame and burn. It is apparent in this case the unfortunate accident did not occur through any negligence of the defendants. There was no duty on the part of defendants to warn the plaintiff of an obvious fact.

There are no standards by which a cigarette manufacturer is required to make a cigarette that if left unattended will not burn. Nor is a sofa maker required to manufacture a flame retardant product. So the allegations of a faulty design and the creation of an inherently dangerous instrumentality must fail. The trial court properly sustained the demurrers of the defendants to plaintiff's petition.

JUDGMENT AFFIRMED.

SIMMS, C.J., and LAVENDER, HARGRAVE, OPALA and SUMMERS, JJ., concur.

DOOLIN, V.C.J., and WILSON and KAUGER, JJ., dissent.

DOOLIN, Vice Chief Justice, dissenting.

The majority of this Court has today blunted the development of strict liability under Products Liability cases in this state particularly as to chemical additives and the like.

The petition states that plaintiff purchased a sofa designed and manufactured by Futorian. Plaintiff fell asleep on the sofa while smoking, after which the sofa ignited. The sofa is alleged to be a defective product because it...