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Bar Journal - September 1, 1999

Strict Liability & Negligence: Bringing a Cause of Action for Secondhand Smoke Damages



The case of Buckingham v. R. J. Reynolds Tobacco Co.1  involved bystander recovery for damages allegedly caused by environmental tobacco smoke (ETS). The plaintiff, the widower of Roxanne Ramsey-Buckingham, brought suit against cigarette manufacturers alleging strict liability and negligence.2  The plaintiff alleged that Ms. Ramsey-Buckingham developed terminal lung cancer as a result from her exposure to ETS from cigarettes manufactured or sold by the defendants.3 


Count I of the writ of summons was a strict liability claim based on the Restatement (Second) of Torts 402A. The plaintiff alleged that although Ms. Ramsey-Buckingham did not smoke or use tobacco products, it was foreseeable by the defendants that bystanders, like Ms. Ramsey-Buckingham, would be exposed to ETS.5  The plaintiff asserted that the cigarettes were defective because they were unreasonably dangerous, in that they were dangerous beyond the expectations of the ordinary consumer and the utility of smoking did not outweigh the risk caused by ETS.6  No other defect was alleged other than the dangerous character.7 

The New Hampshire Supreme Court dismissed Count I for failure to state a claim upon which relief may be granted because the writ did not allege that the cigarettes were "defective" and "unreasonably dangerous" as separate elements.8  The writ only alleged that "the cigarettes sold by the defendants were defective or unsuitable at the time of sale in that they were in an unreasonably dangerous condition for innocent bystanders such as the plaintiff."9  The Court found the plaintiff's argument that "defect" is not a "separate and distinct element of proof" from the "unreasonably dangerous" element to be inconsistent with the language of Section 402A, the history of its adoption, and New Hampshire case law.10  The Court reasoned that if a product is per se defective because it is unreasonably dangerous, then the inclusion of both the terms "defective" and "unreasonably dangerous" in Section 402A would be redundant.11  "The basis for any claim involving products liability, is an allegation of a defect associated with the product, which makes the product unreasonably dangerous, and causes the injury for which recovery is sought."12  Accordingly, the Court held that because the plaintiff failed to allege that the cigarettes were "defective" and "unreasonably dangerous" as separate and distinct elements, the plaintiff had failed to state a claim upon which relief may be granted.13 

Although the holding in Buckingham makes it clear that to bring a cause of action under Section 402A, a plaintiff must prove that the product is both defective and unreasonably dangerous, should New Hampshire also recognize a cause of action when a bystander is injured by a dangerous, non-defective product that is not used by the vast majority of the population?


Courts have generally required that there be a defect in the product before imposing strict liability.14  Consequently, courts have not imposed strict product liability solely on the basis of the dangerousness of the product.15  However, this limitation does not take into consideration that dangerous products injure two distinct categories of people: consumers and bystanders.16  Bystanders are different from consumers in that they generally do not benefit from the product and do not benefit from any cost savings that a dangerous product design creates.17  Also, they have had no opportunity to bargain for greater safety and have had no opportunity to determine the dangers of the product.18  Most importantly, they have not chosen to expose themselves to the dangerous characteristics of the product.19  Therefore, because of the distinction between consumers and bystanders, manufacturers of dangerous products should be held liable for bystander injuries regardless of whether the product is defective or not.

Courts should recognize the distinction between consumers and bystanders in tobacco cases and impose liability for injuries to bystanders for several reasons. First, bystanders who do not enjoy any benefits of the dangerous products are being exposed to unreciprocated risks by consumers and manufacturers who enjoy the benefits of the products. Second, imposing liability would compensate bystanders for their losses and spread the costs of the injuries among the consumers who helped to create the risks. And, finally, imposing liability would internalize the cost of bystander injury in the price of the product.20 

Reciprocated risks constitute "the background risks that must be borne as part of group living."21  However, those that expose others to unreciprocated risks for their own purposes should pay for the losses suffered as a result of their use of dangerous products.22  If courts were to impose strict liability on manufacturers of dangerous products for injury to bystanders, then the manufacturers will either pass most of the cost of the liability to the consumers who helped create the risks or discontinue some products altogether.23  Although purchasers and consumers of dangerous products will suffer loss as a result of the increased cost of some products and the discontinuance of others, it is only appropriate that purchasers and consumers of dangerous products bear some of the liability costs that dangerous products create.24  It is their use of dangerous products that creates unreciprocated risks to others.25  The risks should be felt by all who benefit from the product.26 

Although courts purport to have eliminated the privity requirement in strict products liability cases, the rights of bystanders continue to be limited by rules based upon warranty law's purchaser/seller relationship.27  One of these rules is the consumer expectations test. Under this test, a plaintiff must show that the product is dangerous beyond the expectations of the ordinary consumer in order to prove that a product is defectively designed.28  When purchasers or consumers are injured, limiting their right to recover to the extent that the ordinary consumer would have understood the risks created by the product may be appropriate.29  Bystanders, however, do not have the opportunity to check the product for safety and do not benefit from the product's function or from any cost savings resulting from the product's dangerous design.30  Therefore, it is more difficult to justify limiting bystander recovery by the expectations of the ordinary consumer.31 

Many jurisdictions further limit bystander recovery by the inherent characteristics rule.32  Under this rule, a manufacturer is not subject to liability for injuries caused by a dangerous product when the dangerous aspect of the product is one of its inherent characteristics.33  In order to recover, a plaintiff must show that the product could have been made using a safer design.34  Comment i to section 402A of the Restatement (Second) of Torts has been interpreted by courts and commentators as advocating this rule.35  Comment i states:

The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by "unreasonably dangerous" in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

Comment i is grounded on consumer responsibility: when consumers are aware of a product's inherently dangerous characteristics, they have presumably chosen to expose themselves to such risks and should bear the responsibility for the losses that they incur.36  Comment i suggests that sugar, whiskey, tobacco, and butter are four examples of products with inherent dangers that should not subject the manufacturer to strict liability.37  Armed with the "good tobacco" language in Comment i, tobacco companies have successfully fought strict products liability actions which claimed that cigarettes were unreasonably dangerous.38  Although it may be reasonable to deny recovery to consumers who are or should be aware of the risks of a product, the knowledge of the consumer should not affect a bystander's recovery for losses sustained.39 

Dean William Prosser suggests another justification for the inherent characteristics rule. According to Prosser, if manufacturers of products with inherent risk of harm were held "automatically responsible for all the harm that such things do in the world", such responsibility would be too costly for such manufacturers to bear.40  However, this article is not suggesting that courts reject the inherent characteristics rule in all cases, only in the cases of bystander recovery.41  This would involve a much smaller extension of liability.42 

A final argument for the inherent characteristic rule is that courts should defer to the consumer's decision that the benefits of a product are greater than the risks.43  The rationale is that the consumer is in a better position than a jury to balance the benefits and risks of a product.44  In cases involving risks solely to the consumers, this deference is valid.45  However, in cases involving bystanders, courts should not allow consumers to determine the scope of a manufacturer's liability for injury to bystanders.46 

Another obstacle to bystander recovery is the patent danger rule. Under this rule, manufacturers are excused from liability if the plaintiff's injuries are a result of a dangerous aspect of the product that is obvious.47  In cases where the consumer has either been contributorily negligent in failing to notice the risk or has assumed the risk, use of the patent danger rule is justified.48  However, the rule is difficult to justify in cases of bystander injury where the bystander has not behaved negligently, has not assumed the risk and has not had an opportunity to affect the risk.49  Despite the apparent unfairness with regard to bystanders, some courts still continue to apply the rule to bystanders.50  However, a majority of courts have rejected the rule in both consumer and bystander cases.51  These courts reason that it would be unfair to relieve manufacturers of responsibility for a dangerous products.52  Courts have also rejected the patent danger rule because the defenses of contributory negligence and assumption of the risk appropriately take into account the plaintiff's culpability.53  Although it may be appropriate to rely upon the risk/utility choice of the consumer in products liability cases brought by consumers, a bystander's recovery should not be limited because the dangers should have been obvious to the consumer.54  Imposing liability for bystander injuries upon manufacturers would cause manufacturers to internalize the cost of bystander losses in the cost of their products.55  Consumers would then have to consider the cost that a product creates to others, as well as themselves, when deciding whether to purchase a product.56 

In cases where plaintiffs have been injured by secondhand smoke, it is particularly important that courts adopt a cause of action against manufacturers for injuries caused by dangerous, non-defective products.57  Unlike other plaintiffs, plaintiffs of secondhand smoke cases cannot generally bring suit against the users of the products that caused their injuries under a negligence or abnormally dangerous activity theory.58  Typically, they have been subjected to secondhand smoke throughout their lives by many smokers.59 The costs of these losses should be imposed upon manufacturers and passed on to all smokers through higher prices.60  Because in most cases it will be impossible to identify one manufacturer who is responsible for the losses, courts may find that this is an appropriate situation to apply market share liability.61 


Count II of the writ alleged a breach of a duty under the Restatement (Second) of Torts 389.62, 63  Section 389 differs from Section 402A in that it requires the defendant's knowledge of the product's dangerous condition and does not require that the product be defective.64  Although New Hampshire law had not previously recognized a claim based on Section 389, the New Hampshire Supreme Court adopted Section 389 as a "proper statement of the law of supplier negligence."65  The Court reasoned that having adopted Section 388 of the first Restatement of Torts more than sixty years ago, it is appropriate that the Court now adopt its "successor in the Restatement (Second) of Torts."66 

Liability under Section 389 is imposed only when it is shown that the supplier knew, or should have known, that the chattel supplied is unsafe for its expected use.67  However, "a duty is owed only to those who are foreseeably endangered and either ignorant of the chattel's dangerous propensities, or otherwise not chargeable with a positive balance of fault."68  The Court determined that the comments to Section 389 clarify that a bystander within the scope of foreseeability of risk is owed a duty under law and may recover on a showing of breach, damage, and causation.69  "Section 389 is simply a statement of basic negligence principles of foreseeability and fault in the supplier context."70  Comment e of Section 389 which was cited by the Court states:

While the rule stated in this Section may, as stated in Comment d,71  occasionally apply to make the supplier of the chattel liable to those who use it with knowledge of its actual character, it is usually applicable to those who share in its use or are in the vicinity of it. Such persons, when injured, are not barred from recovery by the negligence of those who put a chattel to a use for which they know it is dangerous. In the great majority of cases, they are ignorant of the dangerous character of the chattel. Even if they are aware of the dangerous character of the chattel, they may be entitled to be in the danger zone and, therefore, are not contributorily negligent in entering or failing to leave the area endangered, unless the danger is very great.72 

The Court then ordered the case to proceed to discovery as a negligence case.73  The Court also listed factors that would be relevant in proving the claim. These factors include:

... the extent of the supplier's knowledge of the hazards of the products they supplied, the suppliers' expectations as to the use of the product and those that might reasonably be affected, the extent of the plaintiff's knowledge of the hazards involved in the product's use, any actual causation of the damage alleged, and any conduct of the plaintiff material to comparative negligence.74 

The first factor, the extent of the supplier's knowledge of the hazards of the products they supplied, may be difficult to prove. The tobacco companies have consistently denied that they are aware of any health problems caused by cigarettes.75  They have even denied that nicotine, a key ingredient in cigarettes, is addictive.76  However, these denials may no longer be tenable due to recent disclosure of tobacco company documents indicating years of research by the tobacco companies on the addictive nature of nicotine and other adverse health effects of tobacco smoke.

The next factor, the suppliers' expectations as to the use of the product and those that might reasonably be affected, addresses the language in Comment e of Section 389 regarding the "danger zone." If a plaintiff is determined to be within the danger zone, then the plaintiff would not be contributorily negligent for failing to leave the area unless the danger is very great. It would be difficult to conclude that bystanders subjected to secondhand smoke are not within this danger zone. Manufacturers place cigarettes in the stream of commerce with the intent that smokers smoke them. Because manufacturers intend cigarettes to be smoked, they know with substantial certainty that the mainstream and sidestream smoke will contact nonsmokers.77  Therefore, because bystanders are within the danger zone of cigarette smoke, they should not be barred from recovery because they did not divorce a spouse who smokes or did not quit a job that permits smoking in the workplace.

Another factor is the extent of the plaintiff's knowledge of the hazards involved in the product's use. This factor should not be considered in cases involving bystander recovery because the bystander is not the person using the dangerous product. Therefore, the plaintiff's knowledge of the hazards associated with a dangerous product should be irrelevant in a case that strictly involves bystander recovery.

Still another factor is proving any actual causation of the damage alleged. Though the plaintiff traditionally carries the burden of establishing all the elements of case, a recent development in tobacco litigation could be the beginning of a trend that shifts the burden on cigarette manufacturers to prove that their product did not cause the damages sustained by the plaintiff. The case of Broin v. Phillip Morris Companies, Inc.78  involved a class action suit against cigarette manufacturers by flight attendants who alleged that they have sustained injuries as a result of inhaling secondhand smoke in airplane cabins. In this case, the tobacco companies agreed inter alia to carry the burden of proving that their product did not cause the injuries sustained by the flight attendants.79  In exchange, the flight attendants agreed to drop their class action suit and decided instead to pursue their claims on individual bases. What impact this agreement will have on future tobacco litigation remains to be seen.

The final factor to be considered is any conduct of the plaintiff material to comparative negligence. In cases involving bystanders who have never used the dangerous product, comparative negligence would be hard to establish. Unlike consumers, bystanders generally do not have the ability to take steps for their own safety.80  Bystanders are merely engaged in their daily activities and would have to cease these normal activities to avoid risks associated with the use of dangerous products.81  Also, bystanders cannot purchase safer products, purchase products from reputable manufacturers, or bargain for what they deem is an appropriate level of safety.82  Therefore, this factor should not be significant in limiting bystander recovery.


As the law currently stands in New Hampshire, plaintiffs who wish to pursue a strict product liability claim against a manufacturer under Section 402A must establish that the product is both defective and unreasonably dangerous as a result of the defect. Although this requirement is justified when the plaintiff is a consumer, it is difficult to justify the requirement when the injured party is a bystander. Until New Hampshire recognizes a cause of action against manufacturers of dangerous, non-defective products for losses sustained by bystanders, these plaintiffs are limited to a negligence claim under the newly adopted Section 389 of the Restatement (Second) of Torts or an abnormally dangerous activity claim.



142 N.H. 822, 713 A.2d 381 (1998).


142 N.H. at 824, 713 A.2d at 383.


142 N.H. at 825, 713 A.2d at 383.


















Id., quoting Gianitsis v. American Brands, Inc., 685 F.Supp. 853, 856 (D.N.H. 1988).


Buckingham, 142 N.H. at 826, 713 A.2d at 384, citing Bagley v. Controlled Environment Corp., 127 N.H. 556, 559-60, 503 A.2d 823, 825-26 (1986).


Robert F. Cochran, Dangerous Products and Injured Bystanders, 81 KY.L.J. 687, 701 (1993).






Id. at 688.






Id. at 701.


Id. at 702, quoting George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 at 543 (1972).


Cochran, supra note 14, at 702.










Id. at 692.


The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.


Cochran, supra note 14, at 693.






Id. at 693.


Id. at 693-94.


Id. at 694.




Id. at 694-95.


Id. at 695.


Thomas C. Galligan, Jr., A Primer on Cigarette Litigation Under the Restatement (Third) of Torts: Products Liability, 27 Sw. U. L. Rev. 487, 496 (1998).


Cochran, supra note 14, at 695.


Id., quoting William L. Posser, Strict Liability to the Consumer in California, 18 Hastings L. J. 9, 23 (1966).


Cochran, supra note 14, at 695-96.


Id. at 696.








Id. at 696-97.


Id. at 699.






Id. at 725 n.61.


Id. at 725 nn.57 & 62.


Id. at 725 n.63.


Id. at 700.








Id. at 700.










Buckingham, 142 N.H. at 827, 713 A.2d at 384.


One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.


Buckingham, 142 N.H. at 828, 713 A.2d at 385.






Id., See, Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 572 (Iowa 1986).


Buckingham, 142 N.H. at 828-829, 713 A.2d at 385, citing Bushnell Tank Co. v. Kirkman, 555 N.E.2d 375 (1990).


Buckingham, 142 N.H. at 829, 713 A.2d at 385.


Id., See, Rodriguez v. Besser Co., 565 P.2d 1315, 1320 (1977).


RESTATEMENT (SECOND) OF TORTS 389 cmt. d states:
The rule stated in this Section determines the conditions under which the supplier of a chattel which he knows or has reason to know to be unlikely to be made safe for the use for which he supplies it is subject to liability. As defined in s 5, the phrase "subject to liability" means that the supplier will be liable if, but only if, his conduct is, in law, the cause of bodily harm sustained by another, and if the person injured by it has not so conducted himself as to disable him from recovering. Therefore, if the person using a chattel is informed of its dangerous character or learns of it from other sources, he may be barred from the recovery for any harm which he sustains by using the chattel. There may, however, be circumstances under which his use of the chattel with the knowledge of its defective character may not disable him from recovering. He may be a person whom, because of youth or other reasons, the supplier should recognize as unable to appreciate the danger involved in the use of the chattel, even though its actual condition or character is disclosed to him. Again, he may have no choice to use or refuse to use the chattel....


Buckingham, 142 N.H. at 829, 713 A.2d at 385-86.


142 N.H. at 830, 713 A.2d at 386.




Galligan, supra note 38, at 487.




Darren S. Rimer, Secondhand Smoke Damages: Extending a Cause of Action for Battery Against a Tobacco Manufacturer, 23 Sw. U. L. R. 1237, 1263 (1995).


Broin v. Phillip Morris Co., 641 So.2d 888 (1994).


Broin v. Phillip Morris Co., Nos. 98-569, 98-513, 98-418, 98-397 & 98-389 (Fla. Ct. App., 3rd Dist. filed July 22, 1998).


Cochran, supra note 14, at 710


Id. at 708.


Id. at 710.

The Author

Ngon D. Pham, Class of 2000, Franklin Piere Law Center, Concord, New Hampshire.


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