Yes. The person suing has to prove that the safer version is just as satisfying. A product is designed badly if there's a safer way to make it that still lets it do its main job. For a saw, the job is to cut wood. But for a cigarette, its only job is to give a smoker pleasure. The family proved that 'light' cigarettes were safer, but they didn't prove that smokers liked them just as much as regular cigarettes. If the court made companies liable for selling the more popular regular cigarettes, it would be like banning them, which is a job for lawmakers, not judges.

No. The person suing shouldn't have to prove smokers like the safer version just as much. The majority is putting the responsibility on the wrong side. The family just needed to show a safer cigarette could be made. It should have been the cigarette companies' job to argue that the safer version wouldn't sell because people don't like it. The case should be sent back for a new trial to let the companies make that argument.

No. Norma's family didn't prove that 'light' cigarettes are as enjoyable for smokers as regular ones. People only smoke cigarettes to feel good. So Norma's family had to show 'light' cigarettes make people feel just as good. They didn't, so they couldn't prove the 'light' cigarettes were a safer design that still worked the same. If we want to ban regular cigarettes, that's a job for the government, not the courts.

I disagree. I think Norma's family did show that the tobacco companies could have made a safer cigarette that still worked the same. The majority is making Norma's family prove the wrong thing - that 'light' cigarettes are just as likeable. The tobacco companies should have been allowed to show that 'light' cigarettes wouldn't sell as well. I think we should send the case back for a new trial to let them do that.

Yes. Norma's family didn't prove that 'light' cigarettes are as enjoyable for smokers as regular ones. People only smoke cigarettes to feel good. So Norma's family had to show 'light' cigarettes make people feel just as good. They didn't, so they couldn't prove the 'light' cigarettes were a safer design that still worked the same. If we want to ban regular cigarettes, that's a job for the government, not the courts.

I disagree. Norma's family showed that the tobacco companies could have made a safer cigarette that still worked the same. The majority is making Norma's family prove the wrong thing—that 'light' cigarettes are just as likeable. The tobacco companies should have been allowed to show that 'light' cigarettes wouldn't sell as well. We should send the case back for a new trial to let them do that.

***** HERE ARE THE OPINIONS. THERE ARE 2 OF THEM ***** *THIS IS A Majority OPINION* *ITS CONTENT IS:* <opinion type="majority"> OPINION OF THE COURT <author id="b627-6">Smith, J.</author> Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine. We agree with the Appellate Division that plaintiffs failed to prove an essential element of their case: that regular cigarettes and “light” cigarettes have the same “utility.” The only “utility” of a cigarette is to gratify smokers’ desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes. Norma Rose, who died during the pendency of this appeal, smoked for more than 40 years, consuming more than a pack a <page-number citation-index="1" label="550">*550</page-number>day of regular cigarettes. Beginning in the late 1960s, the products she smoked were manufactured by the American Tobacco Company and Philip Morris USA Inc. Ms. Rose quit smoking in 1993, and was diagnosed two years later with lung cancer and another condition allegedly caused by smoking. She and her husband brought a number of claims against American Tobacco’s successor (Brown &amp; Williamson Tobacco Corporation), Philip Morris and a third company. All their claims except one for negligent product design were dismissed at the trial level and are not now before us. A jury found that American Tobacco and Philip Morris negligently designed the cigarettes Ms. Rose smoked and, in later phases of the trial, awarded compensatory and punitive damages. The Appellate Division reversed the resulting judgment, with two Justices dissenting, and granted judgment in defendants’ favor (53 AD3d 80 [2008]). Plaintiffs appeal to us pursuant to CPLR 5601 (a), and we now affirm the Appellate Division’s order. In Voss v Black &amp; Decker Mfg. Co. (59 NY2d 102, 108 [1983]), speaking of a claim of strict product liability, we said: “The plaintiff... is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.” While this is a negligence, not a strict liability, case, similar requirements apply—specifically, plaintiffs here had to prove that “it was feasible to design the product in a safer manner.” This means, to use again the language of Vbss, the plaintiffs must show “the potential for designing . . . the product so that it is safer but remains functional” (id. at 109). Here, plaintiffs presented evidence from which a jury could find that light cigarettes—cigarettes containing significantly lower levels of tar and nicotine—are “safer” than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain “functional.” The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function. Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes—indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of consumers continue to prefer regular cigarettes. <page-number citation-index="1" label="551">*551</page-number>It is not necessary in every product liability case that the plaintiff show the safer product is as acceptable to consumers as the one the defendant sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has. A cigarette is a different kind of product from the circular saw in Voss, whose function was to cut wood, or the molding machine in Robinson v Reed-Prentice Div. of Package Mach. Co. (49 NY2d 471 [1980]), whose function was to melt and form plastic. We find an apt analogy, as the Appellate Division did, in Felix v Akzo Nobel Coatings (262 AD2d 447 [2d Dept 1999]). The product involved in Felix was a quick drying lacquer sealer made from a highly flammable solvent base. The plaintiff argued that a safer design was “feasible,” because a sealer can be made from a water base, but the plaintiffs expert “admitted that the water-based products take hours longer to dry” (id. at 448). The court in Felix found that this “functional difference” defeated the plaintiffs case; the plaintiff failed to produce evidence “that there was an alternative, safer design” serving the same function (id. at 448, 449). Similarly, here plaintiffs’ case fails because plaintiffs failed to show that light cigarettes are equivalent in function, or utility, to regular ones. Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes’ “utility.” A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless. But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts. Accordingly, the order of the Appellate Division should be affirmed, with costs. </opinion> **END OF THIS Majority OPINION ***THIS IS A Dissent OPINION* *ITS CONTENT IS:* <opinion type="dissent"> <author id="b629-7">Pigott, J.</author> (dissenting). I respectfully dissent. Plaintiffs met their burden of establishing that defendants were able to design a safer cigarette that maintained the functionality of a regular cigarette (see Voss v Black &amp; Decker Mfg. Co., 59 NY2d 102, 109 [1983]). The majority concludes, however, that plaintiffs were required “to prove that smokers find light cigarettes as satisfying as regular cigarettes,” and were further obligated to prove that cigarettes serve some function other than to provide plea<page-number citation-index="1" label="552">*552</page-number>sure (majority op at 550). In my view, this language improperly shifts the burden of proving consumer acceptability to plaintiffs. At trial, defendants moved “to offer evidence tending to prove that the ‘safer alternative design’ suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)” (10 Misc 3d 680, 696-697 [2005]). The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality (id. at 699). That was error and, therefore, I would remit the matter to Supreme Court for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette. Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Jones concur with Judge Smith; Judge Pigott dissents in a separate opinion. Order affirmed, with costs. </opinion> **END OF THIS Dissent OPINION ******* END OF ALL OPINIONS FOR THIS CASE *****

Yes. In a negligent product design claim for a product whose sole utility is subjective pleasure, a plaintiff must show that a proposed safer alternative is functionally equivalent, which includes providing comparable consumer satisfaction. To establish that a product was negligently designed, a plaintiff must show that a safer design was feasible and that the product would have remained functional. For a product like a cigarette, whose only identified function is to provide pleasure to a smoker, functionality is synonymous with consumer satisfaction. The plaintiffs demonstrated that 'light' cigarettes were a safer alternative but failed to present any evidence that smokers find them as satisfying as regular cigarettes. To hold that manufacturers are liable for selling regular cigarettes when a less-satisfying but safer alternative exists would amount to a judicial ban on the product, a power that resides with the legislature, not the courts.

No. A plaintiff is not required to prove that a safer alternative is as satisfying to consumers; rather, the burden should be on the defendant to prove the safer alternative is not feasible due to consumer unacceptability. The majority improperly shifts the burden of proving consumer acceptability to the plaintiffs. The plaintiffs met their burden under existing precedent by showing that a safer cigarette design was feasible and functional. The defendants should have been allowed to present evidence that the safer design was not commercially viable. The trial court erred in excluding the defendants' evidence on this point, and the correct remedy would be a new trial to allow the defendants to present that proof.

No. The plaintiffs did not prove that light cigarettes are as satisfying to smokers as regular cigarettes. The only utility of a cigarette is to gratify smokers' desires for a certain experience. Because plaintiffs failed to show that light cigarettes have the same utility as regular cigarettes, they did not meet the requirement to prove a feasible safer design. A product liability claim requires showing that the safer design is still functional. Where the only function is consumer satisfaction, plaintiffs must prove the safer design is as acceptable to consumers. Banning regular cigarettes is a decision for the legislature, not the courts.

I respectfully dissent because the plaintiffs met their burden of proving it was feasible for the defendants to design a safer cigarette that maintained functionality. The majority improperly shifts the burden to the plaintiffs to prove consumer acceptability of light cigarettes. The trial court erred in not allowing the defendants to present evidence that the lighter cigarette design was not commercially viable compared to regular cigarettes. I would remit for a new trial to allow the defendants that opportunity.

Yes. A negligent design claim against cigarette manufacturers requires proof that light cigarettes are as satisfying to consumers as regular cigarettes. The plaintiffs did not prove that light cigarettes are as satisfying to smokers as regular cigarettes. The only utility of a cigarette is to gratify smokers' desires for a certain experience. Because plaintiffs failed to show that light cigarettes have the same utility as regular cigarettes, they did not meet the requirement to prove a feasible safer design. A product liability claim requires showing that the safer design is still functional. Where the only function is consumer satisfaction, plaintiffs must prove the safer design is as acceptable to consumers. Banning regular cigarettes is a decision for the legislature, not the courts.

I respectfully dissent because the plaintiffs met their burden of proving it was feasible for the defendants to design a safer cigarette that maintained functionality. The majority improperly shifts the burden to the plaintiffs to prove consumer acceptability of light cigarettes. The trial court erred in not allowing the defendants to present evidence that the lighter cigarette design was not commercially viable compared to regular cigarettes. The case should be remitted for a new trial to allow the defendants that opportunity.

Adamo v. Brown & Williamson Tobacco Corp.

Case Podcast

Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

Why This Case Matters

Gunnerbot