BILL ANALYSIS                                                                                                                                                                                                    



                                                          SB 67  
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SENATE THIRD READING
SB 67 (Kopp) 
As Amended June 19, 1997
Majority vote

  SENATE VOTE  :  28-9
                                                  
  JUDICIARY            11-3                                           
      
 Ayes:               Escutia, Aroner, Caldera, Figueroa, 
      Keeley, Kuehl, Martinez, Ortiz,
      Pacheco, Shelley, Sweeney

Nays: Morrow, Baugh, McClintock  

  SUMMARY  :  Repeals the current immunity conferred upon  
manufacturers and sellers of tobacco products.  Specifically,  this  
bill  :  

1)  Deletes tobacco from the list of examples of products granted  
immunity from liability and thereby provides that this provision  
no longer exempts tobacco products from product liability actions.

2) Restores products liability law as it relates to tobacco  
   products and clarifies that the bill would restore the common  
   law rules governing legal actions based upon products liability  
   with respect to tobacco.  

3) Declares that there is no statutory bar to, or immunity from,  
   tobacco-related personal injury, wrongful death, or other tort  
   claims by smokers or others, and that such claims shall be  
   determined on their merits.

4) Adds language to ensure the bill does not chapter out any  
   provisions of AB 1603 (Bustamente).

  EXISTING LAW  : 

1) Provides [Civil Code Section 1714.45, one of the provisions of  
   the comprehensive 1987 tort reform legislation, the so-called  
   "napkin deal"] that a manufacturer or seller of a product is  
   not liable in a products liability action if the product is  
   inherently unsafe and ordinary consumers know it is inherently  
   unsafe.  Lists tobacco as one of the products barred from  
   products liability claims.

2) Defines "product liability action" as any action for injury or  
   death caused by a product, except that the term does not  
   include an action based on a manufacturing defect or breach of  
   an express warranty.

3) States, in  American Tobacco Co. v. Superior Court  (1989) 208  
   Cal.App.3d 480, the First District Court of Appeal, that Civil  
   Code Section 1714.45 was poorly drafted and construed that the  
   statute provides an unconditional immunity to tobacco products.








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4) In  Richards v. Owens Corning, Inc.  (1997) 14 Cal.4th 985, the  
   California Supreme Court construed Civil Code Section 1714.45  
   to negate liability to voluntary users, emphasizing the  
   voluntariness of a smoker's use of the 
product.  Thus under our Supreme Court's most recent  
interpretation of Civil Code Section 1714.45, tobacco companies  
are immune from tort liability against knowing and voluntary  
smokers.
 
  FISCAL EFFECT  :  Unknown

  COMMENTS  :  According to the author's office, this bill is intended  
to restore product liability law as it relates to tobacco products  
prior to the enactment of Civil Code Section 1714.45.  In support  
of the repeal, he states that: 
   Evidence has now become available showing tobacco companies may  
   have deliberately manipulated the level of nicotine, a  
   powerfully addictive substance, in tobacco products so as to  
   create and sustain addiction in smokers.  In addition, evidence  
   shows the tobacco companies have systematically suppressed and  
   concealed material information and waged an aggressive campaign  
   of disinformation about the health consequences of tobacco use.

This bill would not appear to effect the traditional liability  
defenses available to the tobacco companies in fighting actions  
against them.  Common law defenses, such as assumption of the  
known risk, will continue to be available to tobacco manufacturers  
and suppliers even in suits brought by public entities to recover  
these costs.

The California Medical Association (CMA), one of the main  
participants in the tort reform package of 1987, writes:

   At the time, it was not anticipated that the California courts  
   would interpret this [section 1714.45] so broadly.  Over the  
   last decade, we have also learned much regarding the addictive  
   nature of tobacco and the industry's intentional efforts to  
   mislead the public on the health effects of tobacco.  This,  
   coupled with the courts' broad interpretation of the California  
   statute, has precipitated the need to change that statute and  
   remove tobacco's liability protections. 
Opponents assert that Civil Code Section 1714.45 provides  
manufacturers appropriate protection from lawsuits from  
individuals who choose to use an inherently dangerous product.

Similar legislation, AB 1603 (Bustamante) has no affect on suits  
by private parties.  AB 1603 specifically underscores the past and  
present viability of suits by public entities, and the Attorney  
General on behalf of public entities.  The bill also clarifies  
that the state has always had the ability to file these lawsuits.   
   

SB 340 (Sher) affects suits by private plaintiffs (i.e., smokers  
and their families) as well as suits by public entities.  It would  
provide that  section 1714.45 does not apply to any action against  
a tobacco company, its successor-in-interest, or a tobacco  







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industry research organization brought by specified individuals.  


  Analysis prepared by  :  Drew Liebert / ajud / (916) 445-4560


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