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American Tobacco Company6/20/1997
o the general health risks of cigarettes, summary judgement was proper. However, as we explained above, American did not conclusively establish that the danger of nicotine addiction was common knowledge in 1952. The common-knowledge defense does not preclude the Grinnells' implied warranty claims to the extent they relate to the addictive quality of cigarettes.
American further alleges that all of the Grinnells' remaining implied warranty claims are barred by limitations. Section 2.725(b) of the Texas Business and Commerce Code provides a four-year limitations period for all warranty claims. Tex. Bus. & Com. Code Section(s) 2.725(b). Regarding the time of accrual, " mplied warranties relate to the condition, kind, characteristics, suitability, etc. of sold goods at the time of sale; thus, the statute of limitations on implied warranties runs from the date of the sale." Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 546 (Tex. 1986). The four-year statute of limitations on implied warranties began to run at the time of delivery, not when Grinnell discovered he had cancer. Accordingly, the implied warranty claims predicated upon the addictive nature of cigarettes and that arose within four years before Grinnell filed suit are not barred by limitations and may be maintained. Accordingly, we remand these surviving implied warranty claims.
C. Fraud, Fraudulent Concealment, Negligent Misrepresentation, and Express Warranty
We turn next to the Grinnells' claims for fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and express warranty. These claims are based on alleged misrepresentations in American's advertisements. The Grinnells allege that if American had revealed the health risks of smoking cigarettes, and had not deceived Grinnell by making false representations to the contrary, Grinnell never would have started smoking.
The documents the Grinnells claim contained misrepresentations include (1) a 1953 press release by Paul Hahn, then American's president, (2) a promotional item entitled "A Frank Statement to Cigarette Smokers" released by the Tobacco Industry Research Committee, of which American was a member, and (3) an advertisement entitled "Why We're Dropping The New York Times." All three of these documents stated that American and the tobacco industry still believed that smoking was not injurious to health and that no one had yet proved that lung cancer in any human being was directly traceable to smoking tobacco. These materials also implied that cigarettes were safe, fit for human consumption, free of contaminants, and not addictive. A fourth document the Grinnells allege contained affirmative misrepresentations is an advertisement stating that the longer Pall Mall cigarette naturally "filters the smoke" but "does not filter out the Pall Mall flavor." This advertisement also stated that Pall Malls were friendly to a smoker's taste and that "for flavor and mildness fine tobacco filters best." The Grinnells also contend that American intended consumers of its products to see and rely on the statements in its advertisements. They bolster this contention with the deposition testimony of Robert Heimann, one of American's former chief executive officers, who testified: "There is no reason why [consumers] could not accept our position stated here and elsewhere that the products we make are not injurious toficer, testified in his deposition that "these are safe products." At the outset, we recognize that the fraud, fraudulent concealment, negligent misrepresentation, and express warranty claims all share the common element of reliance. In Texas, a plaintiff establishes actionable fraud if the defendant makes a material represe
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