STRIPPED TO its basics, this was Roland Maddox's legal claim against Brown & Williamson, the manufacturer of Lucky Strikes:
I liked to smoke, I enjoyed cigarettes, I knew they were bad for me, I refused to quit, I laughed off the health risks, I got cancer. What an outrage! The tobacco industry ought to pay me $100 million.
Since 1954, more than 1,000 lawsuits proceeding on roughly that theory have been brought against cigarette makers. For only the third time last week, a jury bought it. Six jurors in Jacksonville, Fla., awarded the Maddox family $500,000 in compensatory damages for Roland's cancer (he died last year). They awarded another $450,000 in punitive damages to teach Brown & Williamson a lesson. "I don't think the tobacco companies will have a leg to stand on much longer," one juror told reporters. "We feel tobacco products . . . are dangerous."
Of the two previous cases in which a jury returned a verdict against a cigarette maker, one was later overturned and the second is on appeal now. Brown & Williamson's lawyer says this verdict, too, will be appealed.
Three verdicts in 10 years don't add up to a trend. But they do suggest that some judges and juries will ignore settled law in order to strike out at Big Bad Tobacco. That should alarm all of us, smokers and nonsmokers alike.
The reason the tobacco companies prevailed in so many lawsuits over the years is that the law was crystal clear: One who voluntarily assumes a risk has no legal claim if harm occurs. This assumption-of-risk doctrine is tort law at its most basic; law students learn it in their first semester. The 1965 "Restatement of Torts," the definitive reference work on the subject, puts it this way: "If the user or consumer . . . is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."
Every American born in the last 100 years has known that smoking can be harmful. Warnings have appeared on cigarette packs since 1966, and the danger of smoking was common knowledge long before that. Gallup polls in the 1950s found that the public, by majorities of 90 percent or so, had heard that cigarettes could cause cancer. Maddox himself referred to his cigarettes as "coffin nails" and "cancer sticks."
Plaintiffs suing tobacco companies have variously accused them of marketing a defective product, of conspiring to cover up tobacco's hazards, or of failing to warn consumers that nicotine is addictive. Whatever the charge, the claims are fatuous. The smokers knew their habit was bad for them; now they want someone else to pay for their bad judgment. The law is clear that such suits have no merit. Nevertheless, smokers have kept bringing them, and lawyers have kept urging juries to disregard the law. Sooner or later, a jury was bound to do it.
But disregarding the law is dangerous. Much more dangerous than smoking. Cigarettes threaten only those who use them. Tear up the legal rules that codify ethics and common sense, and we are all at risk. It is easy to pervert tort law in order to take a poke at Big Tobacco. It will prove less easy to get the law back, unperverted, when a more sympathetic defendant needs protection.
Law and good sense were corrupted in a second courtroom last week. A Boston judge ruled that tenants living above a busy bar can refuse to pay rent if they object to the smell of cigarette smoke from below. In an opinion that thrilled no-smoking activists, Judge George Daher ruled, "The tenants' right to quiet enjoyment was interfered with because of the second-hand smoke that was emanating from the nightclub."
Rubbish. Those who don't want to experience the smells and sounds of a bar shouldn't rent an apartment above one. The law does not permit tenants to stiff their landlords on the rent — in this case, $1,450 a month — just because they can sniff tobacco smoke. No judge would award free rent to tenants who complained that they were kept awake by the sound of beer steins clinking late at night. Or by the odor of liquor wafting up from downstairs. But cast yourself as an unwilling victim of — hiss! — tobacco, and basic landlord-tenant law goes out the window.
It won't stop in Boston. Similar cases have been brought elsewhere, until now without success. Now, a lawyer at the Tobacco Control Resource Center exults, antismoking lawyers have the precedent they need to open a new line of attack.
Law that can be shredded for a "good" cause is no law at all. Due process either protects all — even the unpopular — or it protects none.
In a much-quoted scene in Richard Bolt's "A Man for All Seasons," William Roper urges that the law be set aside so that Thomas Cromwell can be defeated. No, replies Thomas More, the law must not be tampered with — not even to defeat the Devil.
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? . . . D'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
(Jeff Jacoby is a columnist for The Boston Globe).
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