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Buckingham v. R. J. Reynolds Tobacco Co.5/29/1998
Strafford
The plaintiff, Bruce Buckingham, administrator of the estate of Roxanne Ramsey-Buckingham, appeals an order of the Superior Court (Mohl, J.) granting the motion to dismiss filed by the defendants, R. J. Reynolds Tobacco Co., Philip Morris Incorporated, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, The American Tobacco Company, Liggett & Myers, Inc., and Prescott Farms, Inc. The plaintiff appeals the trial court's rulings that bystanders may not recover on a theory of strict liability in a product liability suit, that the plaintiff failed to allege that the defendants' products were defective, and that New Hampshire does not recognize a tort claim based on the Restatement (Second) of Torts § 389 (1965). We affirm in part, reverse in part, and remand.
Count I of the plaintiff's writ of summons is a strict liability claim based on the Restatement (Second) of Torts § 402A. The plaintiff alleged that Ms. Ramsey-Buckingham was diagnosed with terminal lung cancer resulting from her exposure to environmental tobacco smoke (ETS) from cigarettes manufactured or sold by the defendants. Although Ms. Ramsey-Buckingham did not smoke cigarettes or use tobacco products, the plaintiff asserts that it was foreseeable by the defendants that bystanders, like Ms. Ramsey-Buckingham, would be exposed to ETS. The plaintiff contends that the cigarettes made or sold by the defendants were defective because they were in an unreasonably dangerous condition, in that the cigarettes were dangerous beyond the expectations of the ordinary consumer and the utility of smoking did not outweigh the risk caused by ETS. The plaintiff did not allege a defect in the cigarettes other than their dangerous character.
Count II of the plaintiff's claim is based on the Restatement (Second) of Torts § 389. The plaintiff additionally alleged that the defendants knew or should have known that it was unlikely that their products would be made reasonably safe prior to their customary and intended use, and that it was foreseeable that Ms. Ramsey-Buckingham would be endangered by ETS from the defendants' cigarettes.
The defendants moved to dismiss for failure to state a claim upon which relief may be granted. The trial court dismissed count I because, inter alia, the writ failed to allege separately that the cigarettes were defective and that the defect caused the cigarettes to be unreasonably dangerous.
As for count II, although the trial court acknowledged that the facts alleged by the plaintiff fall squarely within a claim based on section 389 of the Restatement, the court dismissed this claim because New Hampshire has not recognized a cause of action based on section 389.
"In reviewing a motion to dismiss for failure to state a claim upon which relief may be granted, we assume the truth of the facts alleged in the plaintiff's pleadings and construe all reasonable inferences in the light most favorable to him." MacLeod v. Ball, 140 N.H. 159, 160, 663 A.2d 632, 633 (1995). If the facts pled do not constitute a basis for legal relief, we will uphold the granting of the motion to dismiss. See Higgins v. Cushman S. Colby, C.P.A., P.A., 140 N.H. 765, 767, 674 A.2d 971, 973 (1996).
I. Strict Liability Under Section 402A
With regard to count I of the plaintiff's writ, we hold that the plaintiff has failed to state a claim upon which relief may be granted because the complaint does not allege that the product was "defective" and "unreasonably dangerous" as separate elements. Instead, the plaintiff alleges only that " he cigarettes sold by the defendants were defective or unsuitable at the time of sale in that they were in an unr
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