Cigarette Litigation's Offspring: Assessing Tort Issues Related to Guns, Alcohol, & Other Controversial Products In Light of the Tobacco Wars

Abstract

Let me begin by commenting on what I shall refer to as the structure of danger with respect to tobacco, guns, and alcohol. Tobacco-mainly in the form of cigarettes-provides undeniably significant benefits for consumers. Cigarettes, I am told, improve one's concentration. Cigarettes, I also learn, have a very good taste. In addition, cigarettes function simultaneously as an effective antidepressant and an effective tranquilizer. To that extent, a cigarette is a kind of miracle drug that one cannot otherwise acquire in the medical marketplace. It is available, moreover, without going through the costly intervention of any physician.

Nevertheless, cigarettes kill more than 400,000 Americans per year. Those who die are, in almost all instances, the immediate consumers of tobacco products. They suffer death even though they use those products in altogether normal and proper ways. To be sure, it can be argued plausibly that cigarette smokers make a deliberate choice in deciding to smoke in the first place. Accordingly, whatever is left of the tort defense of assumption of risk is relevant to whatever tort claims they might bring. Even so, it would be difficult for a court to conclude that cigarette smokers behave unreasonably in smoking cigarettes, and therefore are guilty of contributory negligence. Actually, many of us are no doubt sanctimonious nonsmokers, who might indeed be willing to say that smoking cigarettes is unreasonable. Obviously, however, tobacco companies defending against lawsuits are not in a position to argue that buying and using their products consists of an unreasonable act on the part of smokers themselves. Therefore, in litigation against those companies, the companies are in a position to invoke assumption of risk as a possible affirmative defense; yet it would be awkward for them to argue contributory or comparative negligence as a separate defense.