A 43-year-old woman who never herself smoked or used tobacco products but was subjected to prolonged and repeated exposure to environmental tobacco smoke since childhood developed lung cancer. She sued the major tobacco companies and a local store in strict liability and under Restatement of Torts 2nd, sec. 389. Her complaint alleges that the “defendants knew or should have known that their products would unlikely be made safe prior to their customary and intended use, in that such use would cause toxic and carcinogenic ETS.” See Kelly, M., “Woman Suing Tobacco Firms,” Foster’s Daily Democrat (Dover, NH), December 6, 1994, 1, 16; Kelly, M., “Cigarette Companies Blamed for Cancer,” Foster’s Daily Democrat (Dover, NH), December 7, 1994, 1, 18; Heaney J., “Ailing Woman Sues Cigarette Makers,” Boston Herald, December 8, 1994, 5; Chura, H., “NH Non-Smoker Sues Tobacco Companies for Her Lung Cancer,” The Union Leader (Manchester, NH), December 7, 1994, 13; and Kelly, M., “Sept. Trial Sought for Second-hand Smoke Suit,” Foster’s Daily Democrat (Dover, NH), February 7, 1995.
On April 20, 1995, the Superior Court (Mohl, J.), at 10.2 TPLR 2.66, granted the defendants’ motion to dismiss on the grounds that “New Hampshire has declined to extend a strict liability cause of action to plaintiffs who have no commercial relationship with the defendant.” The court, while noting that “other jurisdictions generally have extended the remedy of strict liability to bystanders foreseeably harmed by a product,” emphasized that Ms. Ramsey-Buckingham did not purchase cigarettes and, therefore, had no commercial relationship with the defendants. See Kelly, M., “Secondhand Smoke Suit Dismissed,” Foster’s Daily Democrat (Dover, NH), April 24, 1995, 1, 14; Kelly, M., “Barrington Woman May Appeal Judge’s Ruling on Secondhand Smoke Suit,” Foster’s Daily Democrat (Dover, NH), April 25, 1995, 1, 14; “Judge Drops Suit Against Tobacco Companies,” The Union Leader (Manchester, NH), April 25, 1995, A4; and “Tobacco Suit Dismissal Appealed,” The Union Leader (Manchester, NH), April 26, 1995, A4. Plaintiff filed an appeal. See “Secondhand Smoke Lawsuit in Court,” Eagle-Tribune (Lawrence, MA), April 21, 1996.
On May 3, 1996, Roxanne Ramsey-Buckingham died of lung cancer at the age of 44. See “Woman Suing Tobacco Firms Dies of Cancer,” The Union Leader (Manchester, NH), May 4, 1996, A7. Oral argument on the appeal to the New Hampshire Supreme Court occurred on May 9, 1996. See Grossmith, P., “Court Hears Arguments on Tobacco Death Suit,” The Union Leader (Manchester, NH), May 10, 1996, A8.
On May 29, 1998, the Supreme Court of New Hampshire, at 713 A.2d 381, 13.3 TPLR 2.137, 1998 N.H.LEXIS 44, reversed the trial court’s dismissal of Count II, a claim based on Restatement (Second) of Torts, sec. 389, which “is a negligence provision governing the liability of suppliers . . . ” of chattel. The trial court had dismissed the count on the basis that “New Hampshire does not recognize a strict liability cause of action under section 389.” However, as the Supreme Court ruled, “section 389 is not a form of strict liability because it requires the defendant’s knowledge of the product’s dangerous condition and does not require that the product be defective . . . . The comments to section 389 make it clear that a bystander, assuming he is within the scope of foreseeability of risk, is owed a duty under law and may recover on a showing of breach, damage and causation.” The Supreme Court of New Hampshire, which affirmed the dismissal of Count I (which did not allege that the defendant’s product was “defective” and “unreasonably dangerous” as separate elements), remanded the case to the trial court, noting that the case “should proceed to discovery as a negligence case.” See Meersman, N., “NH High Court Reinstates Tobacco Suit,” Union Leader (Manchester, NH), May 30, 1998, A1, A6; and “N.H.’s Highest Court Reinstates Secondhand Smoke Lawsuit,” Providence Journal-Bulletin, May 31, 1998, A6. In 2000, the lawsuit was voluntarily dismissed.
Ramsey-Buckingham v. R.J. Reynolds Tobacco Co., et al., 9.6 TPLR 3.786, Strafford County (NH) Superior Court (1994).