Whose risk is it, anyway?

By Jabob Sullum Copyright 1999 New York Times February 19, 1999

Even in a time when we have become accustomed to seeing tobacco companies settle suits for billions of dollars, last week's $51.5 million award to a California woman who developed lung cancer after smoking for 35 years has the power to astonish. The huge amount -- more than three times what the woman's lawyers requested -- suggests that juries are turning against common sense with a vengeance.
Jurors are often willing to help sympathetic plaintiffs by raiding deep corporate pockets, and they have never been fond of tobacco companies. Yet in four and a half decades of litigation, no smoker has received a penny in damages for tobacco-related illness. Partly that record reflects the industry's take-no-prisoners approach, which aimed to intimidate and exhaust plaintiffs, preferably before they saw a courtroom. But the main reason the industry prevailed for so long is simple: people know smoking is risky but choose to do it anyway. In legal terms, they assume the risk.
By suing for the cost of treating smoking-related illness under Medicaid, the states sought to circumvent the assumption-of-risk defense, a prospect that scared the companies so much that they preferred to fork over $246 billion rather than take their chances with dozens of juries. In the California case, as in two recently overturned Florida verdicts, the jurors apparently were so angry at the tobacco industry for its years of mendacity that they simply disregarded the plaintiff's assumption of risk. But by doing so, they too are guilty of denying the truth.
Notwithstanding industry double-talk, warnings about the health risks of smoking go back hundreds of years.
The California plaintiff, Patricia Henley, 52, began smoking a few years before warning labels appeared on packs of cigarettes, but that does not mean she had no way of knowing the habit was risky. In 1965, the "Restatement (Second) of Torts," the American Law Institute's authoritative guide, specifically cited tobacco as a product that was dangerous but not defective, since its hazards were common knowledge. Until 1997, California blocked smokers from suing tobacco companies for the same reason.
Ms. Henley also argued that her addiction prevented her from stopping. This claim is refuted by the existence of some 46 million former smokers in this country, including Ms. Henley herself, who finally quit in 1997, the second time she tried.
Since people have talked about the hazards and addictiveness of smoking for centuries, it is hard to believe that the tobacco companies succeeded in pulling the wool over anyone's eyes. And if they didn't, ordering them to pay damages is simply a way of condemning behavior that offends jurors' sensibilities, rather than compensating someone who has been wrongfully injured.
Suits against gun manufacturers seek to elicit a similar emotional reaction. The day after Ms. Henley's victory, in a private case that tested the "negligent distribution" theory favored by Chicago and other cities, a Brooklyn jury decided that gun makers whose business practices are perfectly legal should pay damages because some of their firearms are used by criminals.
In effect, verdicts like these retroactively shift the boundary between permissible and wrongful conduct. To safeguard the rule of law, appeals courts must reject such exercises in moral outrage.

Jacob Sullum, a senior editor at Reason magazine, is the author of ``For Your Own Good,'' on the anti-smoking movement.

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