Recently, in Sarro v. Philip Morris USA, Inc., No. 08-10224-MLW (D. Mass. Mar. 7, 2012), a Massachusetts federal court held that Philip Morris (“PM”) was not liable for a fire that killed a woman when she fell asleep with a lit cigarette. In 2007, the plaintiff, as administratrix of the woman’s estate, sued the tobacco giant in Massachusetts state court alleging that the defective design and manufacture of the cigarettes caused the fire. After the case was removed, the federal court dismissed the product liability claims in 2009. Until the court’s recent decision, the plaintiff maintained a separate claim alleging that the woman was killed by PM’s willful and wanton conduct.
The woman started smoking on July 31, 1968, her fourteenth birthday, allegedly due to PM’s marketing campaign. In the years that followed, she became addicted to cigarettes. In 2004, while in an impaired state, the women lit and fell asleep with the Marlboro cigarette that caused the fire at her home. Essentially, the plaintiff alleged that had PM not engaged in the willful and wanton conduct of advertising cigarettes to consumers in 1968, the woman would have not fallen asleep with a lit cigarette in 2004. Even though the theory tests the outer limits of proximate causation, it does make some sense in a crazy temporal but-for-this, but-for-that way. We suppose.
The Court indicated that PM could be held liable only if
[T]he evidence is sufficient to prove that prior to July 31, 1968, it knew, or had reason to know, of facts creating a high degree of risk or physical harm to others, but it did not realize or appreciate the high degree of risk involved, although a reasonable actor in its position would have done so.
Unable to find any evidence that PM, in marketing cigarettes prior to July 31, 1968, should have been aware of the probability that the woman would become addicted, smoke while impaired, and die due to a fire started by a cigarette, the Court granted PM’s motion for summary judgment. The Court got this one right. Not only does this case present a series of “but for” facts reminiscent of a Torts exam, it also begs the question: Don’t we assume the risk of fire when falling asleep with a lit object? Regardless of PM’s culpability in marketing cigarettes, the hazard of falling asleep with a lit object should be apparent to us all. Perhaps the plaintiff could have presented a reasonable alternative design for a self-terminating cigarette had her product liability claims not been dismissed back in 2009. While we wait for those results, we may want to consider electronic cigarettes.