Tobacco Defense Rejected in Massachusetts

The SJC rejected the “personal choice” defense in a tobacco wrongful death suit, saying it can only be used if the cigarettes were used in a really, really “unreasonable” way.  (Backwards?  One up each nostril? Actually, they do give examples — see below.)

Massachusetts puts all of strict liability law within the UCC warranty provisions, and doesn’t bar recovery due to the plaintiff’s negligence unless the use was “unreasonable.”  This decision affirms that the doctrine applies in the tobacco context, and that there is no reasonable way to use a cigarette, and thus that the “unreasonable” use defense will ordinarily be unavailable.  The only times when it might be would be, the court suggests, when the plaintiff has a particular medical condition that, I suppose, makes it really unreasonable to smoke:

We have examined the numerous warranty cases cited to us by the parties in which the Correia defense was invoked and there is none where the defendant conceded that reasonable use of the product was impossible….

Nor do we conclude, in the circumstances of this case, that the plaintiff’s stipulation of knowing unreasonable use to be fatal…. On the record before us, the plaintiff’s stipulation restates the obvious: that cigarettes cannot be used safely and therefore that cigarette use is unreasonable. The stipulation that the decedent was aware of the well-  publicized health risks of cigarettes merely places him in the same position as the ordinary consumer or potential consumer of cigarettes. Without more, it is insufficient to justify dismissal of the defective design warranty claim.

Our conclusion does not, as Philip Morris claims, eviscerate the Correia defense. We agree with the defendant that the “key to the Correia defense is not the care, knowledge, or intent of the manufacturer, but the duty of the user to act reasonably concerning a product known to be defective and dangerous.” But where the defendant merchant affirmatively invites the consumer to use a product that cannot safely be used for its ordinary purposes, then public policy demands that the merchant bear the burden of reasonably foreseeable injuries that result from that invitation…. If Philip Morris chooses to market an inherently dangerous product, it is at the very least perverse to allow the company to escape liability by showing only that its product was used for its ordinary purpose.

We agree with Philip Morris, however, that a defendant in a cigarette product liability warranty claim should not be entirely foreclosed from asserting the Correia defense as a matter of law. We are persuaded by Philip Morris’s argument that, in certain situations, a consumer’s use of cigarettes may be so overwhelmingly unreasonable as to make the imposition of warranty liability on the merchant fundamentally unfair. When a consumer, for example, begins smoking cigarettes knowing that she has a particular medical condition, such as emphysema, that is exacerbated by smoking, the Correia defense may be appropriately invoked. To succeed in interposing the Correia defense in such circumstances, the defendant must demonstrate that the plaintiff knew of her particular medical condition and the risks smoking posed to that specific condition at the time she began smoking. The defendant need not show that the consumer had a medical expert’s knowledge of the risk; it is enough for the defendant to demonstrate that the plaintiff knew that smoking would exacerbate her specific illness. Cf. Cigna Ins. Co. v. Oy Saunatec, Ltd., supra at 19 (defendant need not demonstrate that plaintiff had technical knowledge of dangerous and defective condition).

The record before us contains no evidence that the decedent’s use of cigarettes was overwhelmingly unreasonable in the manner we have described above. However, the plaintiff brought her summary judgment motion early in the  litigation, when neither side had full opportunity for discovery. At that stage, the judge properly denied the motion to strike the Correia defense, but she terminated the case prematurely. We do not foreclose the plaintiff from renewing, at a later time and on a more fully developed record, her motion to preclude the Correia defense.