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.
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 Commercial Code plaintiff has failed to identify any express warranty that was breached.
Like the first count, the fourth count alleges negligence and, according to defendant, is subsumed under the Act and is not available as a separate cause of action. The fifth count alleges gross negligence, which, defendant argues, is subsumed under the Act. Plaintiff responded to defendant's motion and agreed that the fourth and fifth counts sounding in negligence and the third count for breach of warranty should be dismissed.
Plaintiff observed that her first count "may not have been as artfully drawn as intended" but is designed to assert a failure to warn claim. Further, plaintiff contends that her second count asserts a claim for strict liability in tort for the defective design of defendant's product.
By the present posture of the case three issues remain: i) Does the complaint allege a claim under the Act for failure to provide an adequate warning? ii) If the answer is "yes," is the inadequate warning claim preempted by the federal Cigarette Labeling and Advertising Act? iii) Does the complaint allege a claim under the Act for defective design of defendant's product pursuant to N.J.S.A. 2A:58C-2(c)?
A. Legal Standard for Rule 12(b)(6) Motion
Pursuant to Rule 12(b)(6), a plaintiff's complaint must be dismissed for failure to state a claim if a defendant demonstrates "beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628, 634 (3d Cir. 1989); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). All allegations set forth in the complaint must be accepted as true, see Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972), and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991).
On a 12(b)(6) motion, the district court is limited to the facts alleged in the complaint, not those raised for the first time by counsel in its legal memorandum. Hauptmann v. Wilentz, 570 F. Supp. 351, 364 (D.N.J. 1983), aff'd without opinion, 770 F.2d 1070 (3d Cir. 1985), cert. denied, 474 U.S. 1103 (1986); Seevers v. Arkenberg, 726 F. Supp. 1159, 1165 (S.D. Ind. 1989) ("This court is not at liberty, however, to consider allegations which do not appear in the complaint, but which are averred only in legal briefs."). The Third Circuit, however, has held that a "court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss," without converting the motion into a motion for summary judgment, "if the plaintiff's claims are based on the document." Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 126 L. Ed. 2d 655, 114 S. Ct. 687 (1994).
In ascertaining whether plaintiff has stated a cognizable claim, this court also examines the facts as alleged by plaintiff for any dispositive affirmative defenses. See, e.g., ALA, Inc. v. CCAir, Inc., 29 F.3d 855, 859 n.9 (3d Cir. 1994) ("It makes sense to allow an affirmative defense to be raised in a [Rule 12(b)(6)] motion to dismiss 'because of the obvious advantage of raising a potentially dispositive issue by preliminary motion instead of requiring a responsive pleading . . . .' (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 351 (1990))). The New Jersey Products Liability Act, for example, provides several affirmative defenses to a design defect allegation, as discussed in Section IV.(D), infra pp. 20-24.
B. Does the complaint allege a claim under the New Jersey Products Liability Act for failure to provide an adequate warning?
Plaintiff alleges that
it was the duty of defendants . . . to warn consumers of dangers of smoking in bed or while sitting or reclining on upholstery while very fatigued or drowsy. . . . As a result of . . . failing to adequately warn [plaintiff's mother] of the dangers of smoking while fatigued or drowsy, a fire erupted in the [plaintiff's] home.
(Compl. PP 4, 6.) The threshold issue to consider is whether defendants had a duty to warn under New Jersey law as alleged by plaintiff.
In deciding whether plaintiffs have a cognizable failure to warn claim under New Jersey law, a court must predict how the New Jersey Supreme court would decide the case, See, e.g., Repola v. Morbark Indus., Inc., 934 F.2d 483, 489 (3d Cir. 1991), and for guidance "must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand," McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir.), cert. denied, 449 U.S. 976, 66 L. Ed. 2d 237, 101 S. Ct. 387 (1980).
In New Jersey, product manufacturers have a general duty to warn of the dangers of using their products, and are not absolved of this responsibility simply because the danger might be obvious. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984). Courts have adopted the rule, however, that manufacturers have no duty to warn of obvious dangers which are "so basic to the functioning or purpose of the product -- for example, the fact that a match will burn -- that a warning would serve no useful purpose." Id. at 208; see Vallillo v. Muskin Corp., 212 N.J. Super. 155, 162 n.4, 514 A.2d 528 (App. Div. 1986).
For example, in Wasko v. R.E.D.M. Corp., 217 N.J. Super. 191, 524 A.2d 1353 (Law Div. 1986), the court examined whether the manufacturer of explosive fuses had a duty to warn trained personnel of the explosive nature of the fuses. The court held that, "there was no duty to warn . . . because . . . the dangers to the plaintiffs were so basic to the functioning or purpose of the product." Id. at 199.
In Hamilton v. Philip Morris, No. L-039139-85 (Super. Ct. Law Div. May 19, 1987) (letter opinion), a New Jersey court determined that a cigarette manufacturer had no duty to warn under substantially the same fact situation as the one under review here. In Hamilton, plaintiff's decedent died in a fire after falling asleep in bed while smoking. Plaintiffs argued that the defendant should have warned the decedent of the dangers of smoking in bed. Judge Dorothea Wefing, now an Appellate Division judge, ruled that:
I cannot conclude that Philip Morris had a duty to warn Mr. Hamilton of the dangers attendant upon smoking in bed. While New Jersey does not follow the rule abrogating the duty to warn in the instance of a patent danger, we have adopted the rule that there is no duty to warn of an obvious danger which is inherent within the basic functioning or use of the product. I concur with defendant that the essential nature of a cigarette requires the application of fire and that there is thus an obvious danger which is inherent to the basic functioning of the product.
Id. at 2 (citations omitted). In my opinion the New Jersey Supreme Court would adopt the rule set forth in Hamilton and hold that there was no legal duty to warn plaintiff's mother of the dangers arising from a burning cigarette while in a flammable bed or couch since it is "an obvious danger which is inherent within the basic functioning or use of the product." Id.
The Oklahoma Supreme Court came to a similar conclusion in a case involving a smoker who had been burned after dropping a lit cigarette on the couch on which she had been sitting. In Lamke v. Futorian Corp., 709 P.2d 684, 687 (Okla. 1985), the Oklahoma Supreme Court declared that, "it is common knowledge a lighted cigarette is potentially dangerous. . . . There was no duty on the part of defendants to warn the plaintiffs of an obvious fact. . . . The trial court properly sustained the demurrers of the defendants to plaintiff's petition." Id. Although I am not bound by Oklahoma law, I am persuaded by the Oklahoma court's recognition of the obvious fact that a lighted cigarette can be dangerous.
Because burning is an inherent and obvious characteristic of a functioning cigarette, and the dangers associated with a burning object are well-known to adults, I conclude that the defendant had no duty to warn defendant's mother of the dangers associated with burning cigarettes. Defendant's Rule 12(b)(6) motion to dismiss will be granted as to this count.
C. Assuming, arguendo, that New Jersey state law required defendants to warn defendant's mother, would the federal Cigarette Labeling and Advertising Act preempt that requirement?
The United States Supreme Court examined the preemption effect of federal legislation on state claims based on cigarette packaging, advertising, and promotion in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). In Cipollone, the family of a long-time smoker who died of lung cancer sued a cigarette manufacturer under a variety of state law tort and contract theories, including the defendants' failure to warn plaintiff of the adverse health effects of smoking. The defendant cigarette manufacturers asserted that such claims were preempted by the 1965 Cigarette Labeling and Advertising Act ("1965 Act") and its 1969 Amendments ("1969 Act") which required cigarette packaging and advertising to include mandated health warnings.
The 1965 Act contained two express preemption provisions:
§ 1334. Preemption.