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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
not to do so. In the present case, the claim of addiction calls the voluntariness of the activity into question. By definition, one who suffers from addiction is compelled to continue an activity even though he or she knows the activity is detrimental. Therefore, even though a cigarette smoker may be made fully aware of the elevated risks, if he or she is addicted to smoking, he or she may not be making a free choice to participate in the activity of continued smoking.
Because of these differences, this court was not willing to extend the doctrine of primary assumption of the risk to cigarette smoking and determined that this affirmative defense should be dismissed.
As for the applicability of the doctrine of express assumption of the risk to the instant case, defendants argued that, each time Ms. Rose smoked another cigarette post 1969, when federal law required warnings concerning the health risks of smoking to be printed on the sides of cigarette packages, Ms. Rose entered into a new, express agreement to assume the health risks related to smoking, based upon the warnings. Plaintiffs contended that Ms. Rose could not have entered into any express assumption of the risks associated with cigarette smoking because defendants never explained those risks to Ms. Rose and, in fact, defendants did everything they could to prevent the real risks of cigarette smoking from becoming known.
The position urged by defendants requires that, each time Ms. Rose smoked another cigarette, she be found to have freely and voluntarily made the choice to do so. However, if, as the plaintiffs contended, Ms. Rose became addicted to cigarettes prior to 1969 when the warnings became mandatory, she was not freely and voluntarily choosing to smoke. As has already been indicated, one who is addicted has lost the ability to make free choices concerning the substance of the addiction. Therefore, even if Ms. Rose received and comprehended the warnings beginning in1969, continuing to smoke cigarettes after that date may not evidence any willingness to assume an elevated risk but, instead, indicate nothing more than Ms. Rose's inability to break her addiction. Thus the court reasoned that, if the jury determined that Ms. Rose was addicted to smoking cigarettes prior to 1969, express assumption of the risk does not apply. On the other hand, if the jury determined that Ms. Rose was not addicted to smoking cigarettes prior to 1969, she may have expressly assumed the risks of cigarette smoking. Accordingly, the court declined to dismiss the affirmative defense of express assumption of the risk prior to the parties' presentation of their evidence at trial.
Based upon all of the foregoing, the court granted the portion of plaintiffs' motion to dismiss the defense of primary assumption of the risk but denied the portion of plaintiffs' motion seeking to dismiss the defense of express assumption of the risk prior to trial, holding that the defense of express assumption of the risk could be considered by the jury depending upon the evidence on addiction presented by the parties at trial.
Defendants' Motion to Dismiss Plaintiffs' Cause of Action for Negligent Product Design on the Basis that the Claims Are Barred by Federal Preemption
Defendants moved to dismiss plaintiffs' cause of action for negligent product design contending that federal law precludes the assertion of negligent product design claims against cigarette manufacturers. Defendants maintained that: " nder the doctrine of 'conflict preemption,' any state law that conflicts with or stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress is preempted" (Defendants' Memorandu
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