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American Tobacco Company6/20/1997
Opinion delivered: June 20, 1997
On Application for Writ of Error to the Court of Appeals for the Ninth District of Texas
Argued on February 13, 1996
JUSTICE CORNYN delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE GONZALEZ, JUSTICE SPECTOR, JUSTICE BAKER and JUSTICE ABBOTT join.
JUSTICE HECHT filed a concurring and dissenting opinion.
JUSTICE ENOCH filed a concurring and dissenting opinion, in which JUSTICE HECHT joined.
JUSTICE OWEN did not participate in the decision.
In this wrongful death case, we confront an issue with profound health and public policy consequences: whether "common knowledge" of the health risks of cigarette smoking relieves tobacco companies of any duty to warn smokers of those risks. Applying our usual summary judgment standard, we conclude that the defendant has conclusively established the defense of common knowledge with regard to the general health risks of smoking. We also conclude, however, that the defendant has not conclusively established the common knowledge defense with regard to the addictive nature of cigarettes. Accordingly, we conclude that the defendant is entitled to summary judgement on most, but not all of the plaintiffs' claims, and remand the surviving claims to the trial court for further proceedings.
In 1952, nineteen-year-old Wiley Grinnell began smoking Lucky Strikes, cigarettes manufactured by the American Tobacco Company. Almost a year later, Grinnell changed to Pall Malls, also manufactured by American. After smoking for approximately thirty-three years, Grinnell was diagnosed with lung cancer in July 1985. Shortly thereafter, he filed this lawsuit. He died less than a year later. Grinnell's family continued this suit after his death, adding wrongful death and survival claims. The family alleges that American failed to warn of, and actively concealed, facts that it knew or should have known, including the facts that Grinnell could quickly become addicted to cigarettes and that his smoking could result in injury or death from the cancer-causing ingredients if he used the cigarettes as American intended. They also allege that, even though American knew or should have known that its cigarettes were dangerous and could not be used safely, American represented to consumers that cigarettes were not harmful, dangerous, or capable of causing injury.
The Grinnells assert essentially six interrelated claims: (1) strict liability design, marketing, and manufacturing defect; (2) negligent testing, failure to warn, misrepresentation, and design; (3) affirmative fraudulent misrepresentation and fraudulent concealment; (4) Deceptive Trade Practices Act violations for failure to disclose and deceptive advertising; (5) breach of express and implied warranties; and (6) civil conspiracy. They also assert claims based on violations of sections 321, 389, 519, and 520 of the Restatement (Second) of Torts (1965, 1977). The gravamen of their complaint is that Grinnell began smoking because American did not warn him of the potential dangers of smoking, and once he began smoking he could not stop because he became addicted to cigarettes.
In several motions for summary judgment, American asserted that it conclusively defeated at least one element of each of the Grinnells' claims and that many of the claims were preempted by federal law. In the first motion, American asserted that the Federal Cigarette Labeling and Advertising Act of 1965 preempted the Grinnells' claims for American's post-1965 activities based on inadequate warnings in advertising and promotional materials. American's second motion asserted that federal law pre
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