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July 11, 1995

THE AMERICAN TOBACCO COMPANY AND ABC CO., DEF CO., GHI CO., and JOHN DOE (fictitious named manufacturers and distributors of cigarettes and cigarette paper), Defendants.

The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, Senior District Judge.

 Defendant Brown & Williamson Tobacco Corporation ("Brown & Williamson") moves to dismiss for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motion will be granted and the complaint dismissed.


 Plaintiff's complaint contains five counts as follows:

 a. First Count

 The first count alleges, inter alia, that "on or about February 26, 1981, and for a long period of time prior thereto," the defendant was "in the business of manufacturing, selling, distributing and advertising cigarettes, including, but not limited to, the Pall Mall brand of cigarette and cigarette paper." (Compl., First Count P 1.) *fn1" Plaintiff further alleges, "her infant brother and her parents, Caryl and James L. Griesenbeck, resided in a certain private family home located at 133 Buckingham Road in the Township of Montclair, County of Essex, State of New Jersey." (First Count, P 2.)

 On that date, plaintiff alleges that her mother "entered the home's sun porch area, in which was located a certain sofa or couch, and began to smoke a certain Pall Mall or other brand cigarette." (First Count, P 3.) Subsequently, plaintiff's mother "left the aforementioned Pall Mall or other brand of cigarette she had been smoking on the aforementioned couch or sofa at her home, not realizing that the cigarette was still burning and smoldering." (First Count, P 5.)

 The complaint further alleges that "as a result" of defendant's "negligence in failing to design, manufacture, and distribute a fire safe self-extinguishing cigarette and in failing to adequately warn Mrs. Griesenbeck and other consumers of the dangers of smoking while seated on or situated near upholstery while fatigue or drowsy, a fire erupted in the home . . . at about 1:20 a.m. on February 27, 1981." (First Count, P 6.) According to the complaint, the fire "heavily damaged the home and resulted in the deaths" of plaintiff's parents and her brother and in "severe bodily injury to plaintiff . . . , then age 5." (First Count, P 6.)

 The complaint also alleges that "as a direct and proximate result" of the defendant's "negligence, plaintiff . . . was severely and permanent injured and disfigured." (First Count, P 7.) The first count of the complaint concludes with the claim that the plaintiff "attained the age of 18 years on March 4, 1993" and that therefore, "this suit is commenced within two (2) years of plaintiff's 18th birthday." (First Count, P 8.)

 b. Second Count

 The second count of the complaint incorporates the prior allegations and then alleges that "by reason of" defendant's "aforesaid actions in designing, compounding, manufacturing, distributing, and placing into the stream of commerce the aforementioned Pall Mall or other brand of cigarette used by the late Caryl Griesenbeck," the defendant is "strictly liable to plaintiff for the plaintiff's injuries, pain and suffering." (Second Count, P 2.)

 c. Third Count

 The third count of the complaint again incorporates the prior allegations and then alleges that the defendant "in the course of manufacturing, promoting, advertising, and distributing their cigarettes, made implied and/or express warranties as to the general safety of their products for intended and foreseeable uses, including smoking of these tobacco products by consumers at home." (Third Count, P 2.)

 The complaint also alleges that the plaintiff's mother "relied upon" the defendant's "implied/or express warranties" and that on the "night of February 26, 1981 or the early morning of February 27, 1981," the defendant "breached the implied and/or express warranties of safety and fitness." (Third Count, PP 3-4.) "As a result" of these alleged "breach of warranties," the complaint claims, plaintiff was "severely and permanently injured and disfigured." (Third Count, P 5.)

 d. Fourth Count

 The fourth count similarly incorporates the prior allegations. It further alleges that when the plaintiff's parents and brother "suffered severe and fatal bodily injuries" in the fire, the plaintiff, "then age 5, beheld the great and fatal harm which had then befallen them in her presence." (Fourth Count, P 2.) "As a result of the foregoing, which was the result of the careless and negligent conduct" of the defendant, the complaint says, "plaintiff was caused to suffer severe mental and emotional anguish, shock, and trauma." (Fourth Count, P 3.)

 e. Fifth Count

 The fifth and final count incorporates the prior allegations and further alleges that the defendant "acted with reckless and wanton disregard of the rights of plaintiff and [was] grossly negligent." (Fifth Count, P 2.)

 II. Prior Actions

 A certification which accompanied the complaint stated that the terrible event which is the subject of the complaint was also the subject Civil Action Number L-50067-81 (in which plaintiff appeared through her guardian ad litem) in the New Jersey Superior Court. The amended complaint in that action -- brought on behalf of the same plaintiff as here and involving the same event as here -- alleges that "the fire was caused by the carelessness, recklessness and negligence of [her parents] Caryl Griesenbeck and/or James L. Griesenbeck." (Compl., First Count, P 5.) Furthermore, the second count of that complaint alleges that John and Maryl Walker, the plaintiff's grandparents, "negligently served alcoholic beverages to [her mother] Caryl Griesenbeck and continued to serve such alcoholic beverages to [her mother] Caryl Griesenbeck and continued to serve such alcoholic beverages to her until and after she became intoxicated." (Second Count, P 4.) The second count further alleges that "as a result of the carelessness, recklessness and negligence of defendants John Y.G. Walker, Jr. and Maryl R. Walker, Caryl Griesenbeck was rendered incapable of alerting the fire department of the fire in her home, of taking measures to alert her family of the fire, and of safely evacuating them from the premises. (Second Count, P 7.)

 The trial court approved a settlement between plaintiff and the estate of her parents and dismissed the action which plaintiff brought against her grandparents. Affirming the order of dismissal the Appellate Division observed that plaintiff's mother had suffered from acute alcohol intoxication and ruled that the Walker's conduct could not be deemed negligence or the proximate cause of the deaths and injuries resulting from the fire. Griesenbeck v. Walker, 199 N.J. Super. 132, 488 A.2d 1038 (App. Div.), certif. denied, 101 N.J. 264 (1985).

 III. Defendant's Motion

 Plaintiff properly filed this action within two years of her eighteenth birthday in the Superior Court of New Jersey on February 24, 1995. Pursuant to 28 U.S.C. §§ 1332, 1441 (a) and 1446, the case was removed to this court by The American Tobacco Company's successor corporation, Brown & Williamson.

 Defendant moved to dismiss each count of the complaint. *fn2" It notes that the case is governed by the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 et seq., ("the Act") and analyzes each count with reference to that Act.

 As to the first count which alleges that defendant was negligent in failing to design, manufacture and distribute a fire-safe self-extinguishing cigarette and in failing to warn of the dangers of smoking while sitting on upholstery when drowsy, defendant contends that under the Act negligence claims are no longer viable in a products liability case in New Jersey.

 The second count alleges strict liability under the Act. Defendant asserts that it cannot be held liable under any of the three ways specified in Section 2 of the Act: i) Plaintiff has not alleged that defendant deviated from the design specifications, formulae or performance standards; ii) There is no duty to warn when, as here, there was an obvious danger which was within the basic functioning or use of the product and, further, the "failure to warn" claim is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1340; iii) Defendant is relieved of a design defect claim by Section 3(a)(2) of the Act which provides that "the manufacturer . . . shall not be liable if: . . . (2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended . . . ."

 The third count alleges breach of implied and express warranties. Defendant asserts that common law claims for breach of warranties (except express warranties) are subsumed under the Act. Defendant asserts as to the express warranty claims that to the extent they sound in tort they are subsumed by the Act and to the extent they are premised on the Uniform ...

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