No Such Thing As a Reasonable Smoker

Jacob Sullum | May 22, 2006

Last week the Supreme Judicial Court of Massachusetts, in a decision reinstating a lawsuit by a smoker's widow against Philip Morris, apparently barred tobacco companies in Massachusetts cases from using their main defense against product liability claims. The gist of the defense, usually known as "assumption of risk," is commonsensical: Since everyone knows cigarettes are dangerous, manufacturers should not be held liable for smoking-related illnesses, a risk voluntarily assumed by people who choose to smoke. In the Massachusetts version, known as the Correia defense, "the user's negligence does not prevent recovery except when he unreasonably uses a product that he knows to be defective and dangerous." But cigarettes are so dangerous, the Supreme Judicial Court concluded, that all use of them is unreasonable, which is to say that no use is:

The Correia defense presumes that the product at issue is, in normal circumstances, reasonably safe and capable of being reasonably safely used, and therefore that the consumer's unreasonable use of the product he knows to be defective and dangerous is appropriately penalized. Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes. Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable.

Philip Morris tried to minimize the significance of this ruling, noting that the court left open the possibility of using the Correia defense in extraordinary circumstances, such as when someone continues to smoke after developing emphysema. But this decision makes it much easier for smokers and their survivors to win damages and will probably result in a lot more litigation.

Help Reason celebrate its next 40 years. Donate Now!

Try Reason's award-winning print edition today! Your first issue is FREE if you are not completely satisfied.

MP|5.22.06 @ 12:30PM|#

Because who in their right mind would do something inherently unsafe in pursuit of personal pleasure?

Timothy|5.22.06 @ 12:35PM|#

Next we'll see BASE-jump widows suing parachute makers.

|5.22.06 @ 12:42PM|#

I think PM should drop the Correia Defense and switch to the Chewbacca Defense.

|5.22.06 @ 12:46PM|#

I think this is a funny form of poetic justice for all the years cigarette manufacturers insisted their product was safe.

|5.22.06 @ 1:00PM|#

"I think PM should drop the Correia Defense and switch to the Chewbacca Defense."

Tearing their opponents' limbs off?

|5.22.06 @ 1:03PM|#

Only when they lose, SR. Only when they lose.

|5.22.06 @ 1:07PM|#

Wasn't there a big "tobacco industry settlement" a while back that was supposed to settle all these lawsuits?

|5.22.06 @ 1:16PM|#

"nonunreasonable"? I think an English teacher somewhere is rising from her grave to pimp-slap whoever wrote that word.

I get the court's logic, but I think it's not only morally wrong but logically flawed. While all cigarette smoking is dangerous in a theoretical sense, if you smoke, say, one cigarette per year, I strongly suspect that the health effects of it will be lost in the noise of all the other health-affecting choices you make in your life. So how does the court justify regulating an activity that might not have any visible effect at all? Seems like their logic could apply to just about anything...oh wait, maybe that was their idea.

daksya|5.22.06 @ 1:19PM|#

I think everyone ought to be made aware of this figure from this landmark study.

|5.22.06 @ 1:20PM|#

This is great.

Motorcycles are unsafe.

Bubgee jumping is unsafe.

Skiing is unsafe.

Not exercising is unsafe.

|5.22.06 @ 1:24PM|#

Chewbacca is a Wookie.

Ewoks...live on Endor.

|5.22.06 @ 1:25PM|#

Since there is an element of risk in every activity and in sitting perfectly still, all things are now actionable.

|5.22.06 @ 1:31PM|#

David is on it. Whereas the logic behind an assumption of risk was about consumer knowledge, we now have a replacement idea that has to do with a third party's determination of unreasonable risk. The whole notion of risk assumption would be shot as a defense in any case.

R C Dean|5.22.06 @ 1:36PM|#

Wasn't there a big "tobacco industry settlement" a while back that was supposed to settle all these lawsuits?

That only settled the claims the states had against the tobacco companies for increased Medicaid and other costs borne by the states.

It had nothing to do with the states muscling in for a share of the profits. Nope, nothing at all. Because every nickel of tobacco money went for health care. Yessirree, every nickel.

|5.22.06 @ 1:38PM|#

I think this is a funny form of poetic justice for all the years cigarette manufacturers insisted their product was safe.

Yeah, it would be a fucking laugh riot except for tobacco unavailable for those like me who, with our eyes wide open to the risk, would like to smoke it every once in a while.

|5.22.06 @ 1:46PM|#

That was supposed to read: "it would be a fucking laugh riot except that the ultimate end of this will be to make tobacco unavailable for those like me who, with out eyes wide open to the risk, would like to smoke it every once in a while."

|5.22.06 @ 1:51PM|#

Just to see if I understand.

PM's defense was... all use of our product is unreasonable so you can't sue us for your unreasonable use of our products (we are not unreasonable to produce the product or sell it, but you are to use it).

Mass. Supreme courts said... since there is no nonunreasonable use of you product, you need to come up with a different defense than one designed for unreasonable use of a product that has a reasonable/unreasonable usage distinction. Seems commonsense like to me.

If PM wants to make money by selling a product they agree is "inherently dangerous" they should calculate the cost of these liability lawsuits into their business model, plan on lots of out of court settlements, and quite complaining.

Maybe each pack of cigarettes could come with a lung-cancer insurance policy with the going rate being calculated based on the cost of tobacco+production+insurance...some sort of freemarket solution that avoids the need for the courts to get involved ;~)

|5.22.06 @ 1:55PM|#

The insurance would, of course, be optional, but it would be "unreasonable" not to get it, so they could fall back on their defense since they have injected a reasonable/unreasonable distinction into usage patterns...

fyodor|5.22.06 @ 2:00PM|#

While I appreciate the slickery slope potential of this, I think that part of what's going on here is that while even nonparticipants can relate to the appeals of riding motorcycles, bungee jumping, skiing and especially not exercising, the joys of smoking tobacco are rather elusive to those of us who don't know them firsthand. Thus it may seem like smokers are doing nothing else but engaging in dangerous behavior. Which leads back to the nonsense that they had to be tricked into starting and then couldn't quit. Now, I'm not justifying any of this, but you gotta know your enemy to defeat him. Whether this ruling would ever lead to suing a motorcycle manufacturer for making such a dangerous thing as a perfectly operating motorcycle, I don't know. But right now, smoking is seen as purely dangerous activity with no other point, and I think that, somehow, must be addressed.

|5.22.06 @ 2:31PM|#

fyodor: I absolutely agree. Before I started smoking, I used to think to myself, "I get why people stop smoking, but why do they start?" No one ever explained to me how fun and relaxing it can be, and I think it's simply because it's hard to communicate.

R C Dean|5.22.06 @ 2:42PM|#

MainStreamMan, I'm not sure where PM argued that all use of their product was unreasonable. I think what they argued was that everyone knew there were risks to smoking, and so anyone who smoked assumed (meaning "took on") those risks.

Where the Mass court lets ideology blind it is when it says:

Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes.

This is simply wrong. Millions of smokers use cigarettes (that is, smoke them) without incurring any cognizable harm. Whether they evaded harm by smoking only a few a day, smoking only for a short period of time, or simply out of dumb statistical luck, the fact remains that many smokers simply do not have a damage claim as a result of smoking cigarettes.

Thus, it is simply false to claim that every time a cigarette is smoked, the smoker suffers (legally compensable) harm.

|5.22.06 @ 2:46PM|#

It almost sounds like they're arguing that any sale of tobacco products creates a strict liability claim.

|5.22.06 @ 2:47PM|#

So long as the general elements of strict liability are met.

|5.22.06 @ 2:57PM|#

I suppose it is too much to hope for Judges in the People's Republic of Massachusetts to have ever heard of a concept called risk/reward.

Everything we do is risky, from crossing the street, to brushing our teeth with tap water, to having sex. Why do we do such risky things then? Because we think the reward outweighs the risk. The MA court has just ruled that individuals are no longer allowed to decide how much risk to take in order to achive a desirable goal, such as pleasure.

|5.22.06 @ 3:00PM|#

It's kind of sad when our courts have to make up words like "nonunreasonable" as the basis for their decisions.

|5.22.06 @ 3:04PM|#

I suppose it is too much to hope for Judges in the People's Republic of Massachusetts to have ever heard of a concept called risk/reward.

I imagine they have, it looks like what they are saying (falsely) is that since the risk is 100%, the reward is irrelevant. One would think that were that true the prescribed solution would be to ban cigarettes rather than to keep milking the cash cow that is cigarette taxes.

|5.22.06 @ 3:15PM|#

RC

"Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette."

This is their stated position. They even buy ads to let us know their postion.

I am not one who has sympathy for those that smoke and then claim their health problems are the tobacco company's fault. I am just saying that there is a reasonable argument to make that the PM defense is flimsy... they aren't claiming that the smoker used the product once it was broken, or in an unapproved way that made it less safe (or more dangerous) than it already was. They are claiming, "we both knew it was dangerous and you agreed to smoke anyway, so we sold it to you" this is a different claim.

fyodor|5.22.06 @ 3:52PM|#

how fun and relaxing it can be, and I think it's simply because it's hard to communicate

Unless it's purely the act of inhaling hard on something burning in your mouth creating the effect you cite, I would assume that the effect reflects a psychoactive aspect of tobacco smoke (even if in combination with the aforementioned delivery process). Which creates a paradox of course because calling tobacco a recreational drug creates a whole new political spectre to deal with. Yet it may be necessary to explain that smoking isn't irrationality incarnate.

|5.22.06 @ 3:53PM|#

"They even buy ads to let us know their postion."

And the fact that they have to buy those ads as part of the judgements made against the tobacco industry would have nothing to do with that, I guess.

|5.22.06 @ 4:13PM|#

Tobacco companies should start including "Directions" on each pack, instructing people to "Smoke maximum 1 cigarette daily, after meal or intercourse".

That way they can easily defend themselves in cancer lawsuits by saying that their product wasn't used as directed, and leave the burden of proof to the plaintiff.

R C Dean|5.22.06 @ 4:40PM|#

MSM, surely you see the difference between "inherently dangerous" and "unreasonable to use". Chainsaws are inherently dangerous, but that doesn't make them unreasonable to use.

|5.22.06 @ 4:56PM|#

MainstreamMan:

"I am just saying that there is a reasonable argument to make that the PM defense is flimsy... they aren't claiming that the smoker used the product once it was broken, or in an unapproved way that made it less safe (or more dangerous) than it already was. They are claiming, "we both knew it was dangerous and you agreed to smoke anyway, so we sold it to you" this is a different claim."

Yes, it is a different claim---but no more "flimsy".

Knowing that something is inherently unsafe, and selling it/using it anyway, as long as said lack of safety is fully disclosed (as it was in this case) is not unreasonable by any means.

The argument, as I understand it, is that it would be entirely unreasonable for someone to trade their safety or health for visceral pleasure. This is about as flimsy an argument as I've ever seen, as it equates "reasonable decisionmaking" with "placing the value of health and physical safety above all else in life". Not only is it wrong to make this assumption, but it is also wrong to even presume that a court can determine the value of something like personal health for the entirety of the population.

The only complicating factor here is that there is indeed a "safe" cigarette, depending on how you define safe. By any rational, reasonable standard, smoking one cigarette a month is not unsafe in any meaningful sense. But smoking 2 packs a day is surely unsafe---unlike, say, a gunshot to the forehead, quantity and frequency make a difference here.

|5.22.06 @ 4:58PM|#

"MSM, surely you see the difference between "inherently dangerous" and "unreasonable to use"

The most fucked-up part about this is that this pompous bunch of appointed justices thinks that they are in a better position to define "rational" than the millions upon millions of people who willingly and knowingly have traded safety and health for visceral physical pleasure.

|5.22.06 @ 5:48PM|#

I must be missing something:

"Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable."

Unreasonable use of a product in a dangerous or defective state? So if I use my swimming pool, that's been drained of water and has a hole in the bottom, to skateboard in and I die, then the pool maker can claim this defense (an unreasonable use in a dangerous state); but if I skateboard in the pool while it's intact and full of water and I die (an unreasonable use in a non-dangerous state), then the pool maker owes my family big-time.

Am I reading this right?

|5.22.06 @ 6:54PM|#

I'm genuinely surprised that Dave W. isn't in this thread.

Dave W.|5.22.06 @ 7:47PM|#

Contributory / comparative negligence and the associated issue of vicarious liability are something I have had to think a lot about in law school and professionally to some degree. The more I think about these issue the less I can get fired up one way or the other.

If this case is really about activities that occurred after they started putting the warning labels on ('64?) then I think the cigarette company should win because that is the legal rule that would make customers take warning labels seriously. I heart consumer information.

Jeff Bull|5.22.06 @ 7:49PM|#

Russ2000 had it mainly correct above, but he missed a crucial detail. It's not just "nonunreasonable," but "no nonunreasonable." If you've got to pound the holy shit out of the English language to make your point, it might be time to wonder if you're reached the right conclusion.

|5.22.06 @ 8:00PM|#

According to a slang website*, coffin nails has been used as a term for cigarettes since 1888. Shouldn't the courts accept the fact that the unhealthfulness of cancer sticks has been common knowledge in our culture for over a century?

Kevin

* http://www.anu.edu.au/andc/res/aehist/wwi/C.php

Sandy|5.22.06 @ 8:20PM|#

I just wish they'd make their push for a ban already and stop with the foreplay.

|5.22.06 @ 8:39PM|#

That is very reasonable, Dave.

|5.23.06 @ 1:30AM|#

"...the ultimate end of this will be to make tobacco unavailable for those like me..."

No problem, Seamus. When tobacco is finally outlawed, just head on over to your friendly, neighborhood tobacco dealer. That he won't be encumbered by the numerous regulations that burden the tobacco companies, or by taxation for that matter, mean his prices will probably be a lot less than what you're paying now.

|5.23.06 @ 8:23AM|#

Shouldn't the courts accept the fact that the unhealthfulness of cancer sticks has been common knowledge in our culture for over a century?
A scam dressed up in legal jargon is still just a scam.

Dave W.|5.23.06 @ 9:13AM|#

Dave W.|5.23.06 @ 9:16AM|#

Shouldn't the courts accept the fact that the unhealthfulness of cancer sticks has been common knowledge in our culture for over a century?

On the other hand, I don't think cigarette companies should be allowed to argue that "everyone knew" before the warning labels went on. If everybody really knew earlier then the cig co.'s should have put the labels on earlier. I am sure some people knew before the labels, but everybody did not know before the labels went on. The labels were very important and should always be deemed so in setting the tort liabilities, at least where said liabilities are not set by private contract (eg, settlement).

Side story: my grandmother was instructed to start smoking by her physician to relieve stress. Although my grandmother did eventually did of pancreatic cancer, I think it is quite possible that the cigarettes probably did extend her life by a decade or more. The point: it was less than a century ago that the doctor was prescribing the cigs.

Dave W.|5.23.06 @ 9:31AM|#

Another story:

My grandmother's husband, my grandfather, also dies from his medical treatments. Specifically, he got radiation treatments for his acne and ended up with skin cancer at 60 or so, which too several years to kill him. Of course, so much time had passed that there was no malpractice suit against the doctors and no product liability suit against the maker of the powerful lamps that irradiated him.

I am glad they are more cautious with new medical treatments now than they were in 1920s. My grandfather's early death is the kind of thing the FDA prevents, but the free market did not.

Dave W.|5.23.06 @ 9:33AM|#

should be:

--got radiation treaments for his acne as a young man and ended up with skin cancer at 60, 40 years or so later--

|5.23.06 @ 2:11PM|#

The Courts logic, that there is no "safe cigarette" is just nonsense. I smoke on average, less than a pack of cigarettes every two months. It's not uncommon for me to go months at a time without smoking a single cig. There is no scientific evidence to suggest that my smoking habbits pose even the slightest health risk. But I do use way too much salt. Indeed, if I don't start cutting back now (I'm 28) I will no doubt suffer the same sort of high blood pressure issues that my father has to deal with. So for me, there is no safe salt. I don't know what deep pocket is responsible for salt production in this country, but under the Mass Court's rationale, it seems like a I have a valid cause of action. Any class action lawyers out there feel free to get in contact with me. These bastards need to go down. Just think of the children.

Reason Magazine

Get Reason E-mail Updates!

Site comments/questions:

Media Inquiries and Reprint Permissions:

Editorial & Production Offices:

advertisements