# American Tobacco Co., Inc. v. Grinnell > Texas Supreme Court · October 2, 1997 · 951 S.W.2d 420 URL: https://www.frixlaw.com/law-library/cases/9762703 ## Case - **Full name:** The AMERICAN TOBACCO COMPANY, INC., Petitioner v. Jeannie GRINNELL, Individually and as Independent Executrix of the Estate of Wiley Grinnell, Jr., Deceased, Wiley and Frances Grinnell, Sr., and Kevin Grinnell, Respondents - **Court:** Texas Supreme Court - **Decided:** October 2, 1997 - **Citations:** 951 S.W.2d 420; 1997 WL 336358 - **Precedential status:** Published - **Opinion:** Concurring in part by Hecht - **Judges:** Cornyn, Enoch, Phillips, Gonzalez, Spector, Barer, Abbott, Hecht - **Cited by:** 1,476 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762703 ## How later opinions describe it (automated extraction) - holding plaintiff’s complaint that cigarettes produced by defendant tobacco company contained pesticide residue which caused plaintiff’s illness could allege a manufacturing-defect claim; although all cigarettes potentially contain pesticide residue, it is not an ingredient to… - holding plaintiffs complaint that cigarettes produced by defendant tobacco company contained pesticide residue which caused plaintiffs illness could allege a manufacturing-defect claim; although all cigarettes potentially contain pesticide residue, it is not an ingredient toba… - holding that under Texas law, a manufacturing defect occurs "when a finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous" - holding that pesticide found in cigarettes is a deviation from the planned output type of defect because no cigarette manufacturer would intend to include pesticides in its cigarettes ## Opinion text HECHT, Justice, concurring in part and dissenting in part. I join fully in Justice Enoch’s concurring and dissenting opinion and write separately only to add a few words of my own. Among the Court’s holdings are these four things. (1) A person who started smoking in 1952 cannot recover damages for contracting lung cancer because the cigarette manufacturer did not warn that smoking may cause cancer. (2) That risk was common knowledge long before 1952.(3) But the same smoker can recover the same damages — that is, for contracting lung cancer — because the *441 cigarette manufacturer failed to warn that smoking may be addictive. (4) That risk was not common knowledge until 1988; before then it was common knowledge only that smoking was habit-forming. For several reasons I think the Court’s view is untenable. First: In Texas, as in most places, the law is that “[g]ood tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.” Restatement (Second) of TORTS § 402A, cmt i, at 852 (1965); see Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex.1991) (following comment i). Plaintiffs’ claim in this case that the cigarettes Wiley Grinnell smoked were unreasonably dangerous because they contained pesticide residue is allowed by comment i, although I think for the reasons Justice Enoch explains, that claim cannot withstand defendant’s motion for summary judgment. Plaintiffs’ claim that cigarettes are addictive, however, is not allowed by comment i. Good tobacco contains nicotine. Nicotine is not a foreign or improper substance in tobacco, like marijuana (as in comment i) or pesticide (plaintiffs’ allegation here) would be. If plaintiffs are right that nicotine is addictive, then addiction is merely one of the harmful effects of the tobacco itself and cannot therefore make otherwise good tobacco unreasonably dangerous. In fact, if the agents plaintiffs claim are addictive were removed from the tobacco, it would no longer be “good tobacco”. One might as well smoke a maple leaf. Second: The distinction between addiction and habituation, important in scientific contexts, is unimportant for purposes of comment i. The two ideas mean only one thing to smokers: it’s hard to quit. This is not a new discovery, suddenly revealed by the Surgeon General in a 1988 report. Almost anyone who ever smoked for any length of time and tried to stop has found it hard; many have found it impossible. Few understood why, in terms of psychological and biochemical body processes, but the difficulty was surely no less real merely because it could not fully be explained. A product is not unreasonably dangerous unless it is “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.” Restatement (Second) of ToRts § 402A, cmt i, at 352 (1965). The ordinary smoker, and all his or her friends and family, know that it is very difficult to quit smoking. They knew it in 1988, when the Surgeon General announced that he thought smoking was addictive, ante at 430; they knew it in 1964, when the Surgeon General announced that he thought smoking was habitual, ante at 430 n. 6; and they knew it generations before Wiley Grinnell started smoking in 1952. The difficulty has long been common knowledge; labeling it “addiction”, though significant scientifically, adds nothing practical to an ordinary smoker’s knowledge. Third: The risk of addiction is subsumed in the risk of cancer and similar health problems. Addiction is a danger at all only if the dependency is unhealthy. Addiction to smoking is dangerous, not because it is expensive or offensive to others, but because it increases the risk of lung cancer. Addiction itself is never fatal, and it can be overcome. People quit smoking. But smoking, whether because of addiction, habit, or free choice, can cause cancer that is fatal. It is an odd rule that affords recovery of damages to a plaintiff who says, “I smoked even though I knew I might get lung cancer, but I never would have done it had I known I might become addicted.” Why is the risk of addiction a danger “beyond that which would be contemplated by the ordinary consumer” if the far more serious risk of cancer is common knowledge? Because, the Court says, “the addictive nature of cigarettes multiplies the likelihood of and contributes to the smoker’s ultimate injury”. Ante at 429. Granted, but allowing a smoker to sue for not being warned of the risk of addiction strikes me as allowing a person who insists on walking along the edge of a sharp cliff despite the obvious danger to sue for not being warned that he might slip. The person need never worry about slipping if he simply stayed away from the edge. What sense does it really make to say: “Don’t walk on the edge *442 of the cliff because you could fall hundreds of feet to your death, and besides, you might slip.” I simply do not see how a person who smokes despite common knowledge of the risk of cancer will be deterred by a cigarette manufacturer’s warning of the risk of addiction. Fourth: Even if addiction is a risk of smoking separate and apart from all the other health risks that are common knowledge and were common knowledge in 1952, and even if cigarettes are unreasonably dangerous because of that risk, a product liability claim should be limited to damages caused by that risk, not the risk of cancer. Yet the Court allows plaintiffs in this ease to recover just as if no one had ever suspected that smoking causes cancer. If cigarettes are defective only because smoking may be addictive, plaintiffs’ damages should be limited to those caused by the defect. The Court places no such limits on plaintiffs’ recovery. ‡ ‡ The Court says that “no expectation of safety arises with respect to cigarettes when they are purchased”. Ante at 485. I agree, but I do not understand why that fact is not fatal to the present litigation. Like Justice Enoch, I would affirm the district court’s summary judgment on all plaintiffs’ claims. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762703. Public record. Not legal advice.