No Such Thing As a Reasonable Smoker

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.