Lamke v. Futorian Corp.

709 P.2d 684
CourtSupreme Court of Oklahoma
DecidedJune 12, 1985
Docket57077, 57479
StatusPublished
Cited by26 cases

This text of 709 P.2d 684 (Lamke v. Futorian Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamke v. Futorian Corp., 709 P.2d 684 (Okla. 1985).

Opinions

HODGES, Justice.

Appellant-Plaintiff Lamke appeals from judgments of the trial court in which demurrers to her Third Amended Petition were sustained as to her cause of action against Appellees-Defendants Philip Morris Incorporated and Futorian Corporation. The trial court expressly dismissed the plaintiff’s action against these defendants, and these consolidated appeals followed.

This lawsuit has its genesis in a fire which allegedly started when a cigarette manufactured by Philip Morris Incorporated fell and ignited a sofa manufactured by Futorian Corporation while Mrs. Lamke [appellant-plaintiff] was on the sofa. It resulted in severe burns to much of Mrs. Lamke’s body. She brought this action against these two defendants, along with other defendants not parties to this appeal, alleging that defects in the manufacturers’ respective products rendered those products unreasonably dangerous, and caused her injuries. After the trial court sustained the manufacturers’ separate demurrers to her Third Amended Petition, it dismissed the plaintiff’s action against them, foreclosing any right to further amend.1

In testing the sufficiency of the petition by a demurrer under the Code of Procedure in effect at the time the question came to be presented, we are guided by long-standing principles recognized in numerous cases including Mohoma Oil Co. v. Ambassador Oil Corp., 474 P.2d 950 (Okla.1970) and Williams v. City of Bristow, 350 P.2d 484 (Okla.1960). Under those rules a demurrer admits the truth of all facts well pleaded together with all inferences which may be legally drawn therefrom, and the petition is to be liberally construed in favor of the plaintiff. The demurrer does not admit facts which are not pleaded, or conclusions of fact or law which are not supported by the allegations of evidentiary facts in the petition. If the plaintiff is not entitled to recover under the facts properly alleged in the petition, the demurrer should be sustained. Groves v. Board of County Commissioners, Washita County, 429 P.2d 994 (Okla.1967).

Since different operative facts allegedly give rise to the liability of each of the appellees-defendants in this case, we must examine the latest version of the petition to determine, under the test noted above, whether a cause of action has been stated against each appellee-defendant.

Plaintiff premises her claim against each defendant on strict liability under Manufacturers’ Products Liability, and upon negligence. With regard to the strict liability claim, both defendants argue that the petition does not allege that the plaintiff’s injuries resulted from a defect which rendered that defendant’s product “unreasonably dangerous” as required by Kirkland v. [686]*686General Motors Corp., 521 P.2d 1353 (Okla.1974). In Kirkland we defined the phrase “unreasonably dangerous” to mean:

“The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to community as to its characteristics.”

That test, applied in this context, means that if Morris’ cigarette was more likely, than expected by the consumer, to cause this fire because of defects, then it was unreasonably dangerous. By the same token, if the sofa was more likely, than expected by the ordinary consumer, to ignite because of some defect, the sofa was unreasonably dangerous. That the product be rendered “unreasonably dangerous” by the defect is an essential requirement for pleading a cause of action in Manufacturers’ Products Liability, Kirkland, supra. Thus, if the plaintiff has not sufficiently alleged that the cigarette was more likely, than would be expected by the ordinary consumer, to cause this fire, and that the sofa was more likely, than would be expected by the ordinary consumer, to be set ablaze, she has not alleged a cause of action under this theory.

As to the cigarette manufacturer, the plaintiff alleged that the cigarettes did not meet this consumer expectation test because they were not

“... manufactured within the state of the art and were dangerous to an extent beyond that contemplated by the ordinary user, including the plaintiff, in that other cigarettes manufactured before, at or near, and after the time of manufacture of said cigarettes did not have added to them chemicals as alleged above, were not manufactured with paper as alleged above, and would not have caused ignition of the couch in question; and in that said cigarettes did not incorporate manufacturing techniques such as represented in patents on file with the U.S. Patent Office, many of which said patents were presented directly to and rejected by defendant Philip Morris. Two of such patents are attached hereto as Exhibits ‘A and B.’ ”

The plaintiff had previously alleged that the cigarettes were defective because they had additional chemicals and special paper which prolonged burning, increased the intensity of the fire of the cigarettes and caused the cigarette to ignite the couch. She also alleged that the cigarette should have been self-extinguishing.

None of the plaintiff’s allegations, if deemed true, establish that these cigarettes were more likely to cause the fire in question than might be anticipated by the ordinary consumer. In her brief, plaintiff argues that she established this fact since she says this cigarette was not an “ordinary” cigarette, but had been chemically treated to increase its intensity and prolong its fire between puffs. That argument is not supported by the allegations of the petition.

Plaintiff did not allege that “ordinary” cigarettes had not been so treated, nor that the defendant’s cigarettes were different from the cigarettes with which the ordinary consumer is familiar. The plaintiff alleges only that at the time of the manufacture of these cigarettes there were other cigarettes which had not been treated chemically as had the defendant’s cigarettes. Apparently, the plaintiff would hold the manufacturer responsible if his product is not as safe as some other product on the market. That is not the test in these cases. Only when a defect in the product renders it less safe than expected by the ordinary consumer will the manufacturer be held responsible.

This is particularly true in cases such as the instant case where the “defect” alleged is the failure to minimize an obvious danger which is inherent in the product itself. In order for a cigarette to be used, it must burn. The simple allegation that the cigarette should have been self-extinguishing or that some other cigarettes would not have burned as long, nor as intensely, does not establish that the cigarettes involved in this case were more likely to cause the fire than might be expected by the consumer. [687]*687The plaintiff has not alleged sufficient facts to state a cause of action in Manufacturers’ Products Liability against defendant Philip Morris.

By the same analysis, the plaintiffs petition is insufficient with regard to Manufacturers’ Products Liability on the part of the sofa manufacturer. Plaintiff alleges only that the sofa was “unreasonably dangerous” because it was not sufficiently flame retardant, and because Futorian Corporation issued no warning as to this defect.

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Bluebook (online)
709 P.2d 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamke-v-futorian-corp-okla-1985.