IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-10562
Summary Calendar
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DEBRA L. DAVIS, on behalf of
Robert L. Davis, Individually and
as Representative of the Estate of
Robert L. Davis, Deceased;
MICHAEL L. DAVIS,
Plaintiffs-Appellants,
versus
R.J. REYNOLDS TOBACCO, INC.,
Defendant-Appellee.
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Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
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October 26, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
This is an appeal from the district court’s dismissal of the
plaintiffs’ claims of civil assault under Texas Penal Code
§ 22.01(a)(1)-(3) against R.J. Reynolds Tobacco for failing to
warn Robert L. Davis of the dangers of nicotine addiction. The
district court dismissed the suit as barred by the Texas Products
Liability Act, Tex. Civ. Prac. & Rem. Code § 82.004. We affirm.
I
Robert L. Davis died of lung disease on October 16, 1997. On
February 8, 1999, the plaintiffs, Davis’s son, wife, and estate,
filed wrongful death and survival actions against R.J. Reynolds
under Texas law. The plaintiffs claimed that R.J. Reynolds
committed an assault on Davis by intentionally, knowingly, or
recklessly causing him bodily injury by failing to warn him that
nicotine is addictive.
On April 28, 2000, the district court granted R.J. Reynolds
motion for judgment on the pleadings and dismissed all of the
plaintiffs’ claims. In a one-page order, the district court noted
that “[p]ermitting the plaintiffs to proceed with this suit would
be wholly inconsistent with Texas law as it has been interpreted by
the Fifth Circuit. See Sanchez v. Liggett & Myers, 187 F.3d 486,
reh’g en banc denied, 196 F.3d 1259 (5th Cir. 1999).”
II
A judgment on the pleadings is reviewed de novo. St. Paul
Fire and Marine Ins. Co. v. Convalescent Servs. Inc., 193 F.3d 340,
342 (5th Cir. 1999). In reviewing a judgment on the pleadings, a
court must look only at the pleadings and must accept all
allegations in them as true to determine whether a genuine issue of
material fact exists. St. Paul Ins. Co. v. AFIA Worldwide Ins.
Co., 937 F.2d 274, 279 (5th Cir. 1991).
2
Texas law bars products liability suits against manufacturers
when
(1) the product is inherently unsafe and the product is
known to be unsafe by the ordinary consumer who consumes
the product with the ordinary knowledge common to the
community; and
(2) the product is a common consumer product intended for
personal consumption, such as sugar, castor oil, alcohol,
tobacco, and butter, as identified in Comment i to
Section 402A of the Restatement (Second) of Torts.
Tex. Civ. Prac. & Rem. Code § 82.004(a). We recently found that
the common knowledge required by the statute was the common
knowledge that the product was “known to be unsafe,” a test which
was “satisfied as a matter of law as to tobacco.” Sanchez v.
Liggett & Myers, Inc., 187 F.3d 486, 490 (5th Cir. 1999).
Adopted at the same time as section 82.004(a), section
82.001(2) statute defines products liability action as
any action against a manufacturer or seller for recovery
of damages arising out of personal injury, death, or
property damage allegedly caused by a defective product
whether the action is based in strict tort liability,
strict products liability, negligence, misrepresentation,
breach of express or implied warranty, or any other
theory or combination of theories.
Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 1997).
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III
The plaintiffs argue that § 82.004 does not bar their claims
because the addictive properties of nicotine were not common
knowledge as required by the statute. As noted above, however, we
have recently decided to the contrary. Sanchez, 187 F.3d at 491.
Because Sanchez’s claim, which was also based on the addictive
effects of tobacco, was barred by § 82.004, the plaintiffs’ claim
that the addictive properties of nicotine were not common knowledge
is precluded by precedent.
The plaintiffs argue, however, that § 82.004(a) does not
create immunity for civil assault claims. First, they claim that
because civil and criminal assault contain the same elements, to
allow immunity would be against Texas public policy because it
would reward the commission of a crime. The cases cited by the
plaintiff, however, involve situations where a criminal sought aid
from the courts to obtain a financial benefit. Here, R.J. Reynolds
did not bring the action and is not seeking damages. Furthermore,
§ 82.004 represents the public policy chosen by the Texas
legislature as to products liability claims for tobacco. Because
we are persuaded that the Texas legislature intended to preclude
the plaintiffs’ claims with the enaction of § 82.004, we decline to
find that Texas public policy bars the application of § 82.004 to
civil assault actions for nicotine addiction.
4
Second, the plaintiffs argue that the language of § 82.004,
and the fact that the Texas Supreme Court has noted that § 82.004
“codified comments i and j of section 402A of the Restatement”1
limit the scope of civil immunity to claims predicated on a product
defect. Thus, the plaintiffs contend that § 82.004 cannot properly
be extended beyond its plain language to bar claims that do not
require proof of product defect. This argument, however, was
rejected in the Hulsey cases, which we affirmed after oral
argument. Hulsey v. American Brands, Inc., 1997 WL 271755 (S.D.
Tex.-Houston 1997), aff’d, 139 F.3d 898 (5th Cir. 1998). As in
Hulsey, the plaintiffs here seek recovery based on the assertion
that R.J. Reynolds products cause nicotine addiction and the
addictive nature of the tobacco was not disclosed by R.J. Reynolds.
Under Texas products liability law, the absence of a warning or
instruction may render a product defective. Malek v. Miller
Brewing Co., 749 S.W.2d 521, 522 (Tex. App. 1988). Thus, despite
the fact that the suit alleges an assault, it is predicated on the
existence of a product defect. This is exactly the type of suit
that is barred by § 82.004(a).
Third, the plaintiffs contend that § 82.004 only bars
products liability claims, and thus their claim for assault should
1
American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 427
n.2 (Tex. 1997).
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be allowed to proceed.2 In Sanchez, however, we found that while
Sanchez’s claims for fraud, conspiracy, and violation of the Texas
Deceptive Trade Practices Act might not be “traditional” products
liability claims, the broad definition of products liability claims
in § 82.001 “plainly forecloses this argument.” Sanchez, 187 F.3d
at 491. Because Sanchez’s claims allegedly arose from his nicotine
addiction, “[a]ll theories of recovery asserted by the Sanchez
family are covered, with the exceptions of manufacturing defect and
breach of express warranty.” Id. Similarly, all of the
plaintiffs’ claims arise out of Davis’s personal injuries allegedly
caused by smoking addictive cigarettes. Thus, the plaintiffs’
claims, which arise out of Davis’s nicotine addiction, are
foreclosed by § 82.004 regardless of how they are pled.
IV
Because we find that the plaintiffs’ arguments are without
merit, we AFFIRM the district court’s judgment dismissing the case
on the pleadings.
A F F I R M E D.
2
Although not controlling under Fifth Circuit Rule 47.5.4, we
find persuasive the holdings of Cornelius v. Phillip Morris, Inc.,
No. 00-10352 (5th Cir. Sept. 27, 2000); Lopez v. R.J. Reynolds
Tobacco Co., No. 00-40247 (5th Cir. June 26, 2000); and Perez v.
Phillip Morris, Inc., No. 00-40146 (5th Cir. June 23, 2000). All
three cases found identical claims for civil assault from nicotine
addiction barred by § 82.004.
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