BILL ANALYSIS                                                                                                                                                                                                    

                                                          SB 67  
                                                         Page 1

SB 67 (Kopp) 
As Amended July 24, 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 from product liability  
actions conferred upon tobacco manufacturers, and their successors  
in interest, but retains this immunity for all others, including  
but not limited to retailers and distributors of tobacco products.  
 Specifically,  this bill  :  

1)  Deletes tobacco from the list of examples of products granted  
immunity from liability.

2) Restores the common law rules governing legal actions based  
   upon product liability with respect to tobacco manufacturers  
   and their successors in interest.  However, continues the  
   exemption from product liability actions involving tobacco  
   extended to all others, including but not limited to retailers  
   and distributors of tobacco products.  

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 against tobacco manufacturers and  
   their successors in interest, and that such claims shall be  
   determined on their merits.


1) Provides in Civil Code Section 1714.45 that a manufacturer or  
   seller of a product is not liable in a product 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 product 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), that  
   Civil Code Section 1714.45 was poorly drafted and provides an  
   unconditional immunity to tobacco products.

4) States, in  Richards v. Owens Corning, Inc.  (1997) by the  


                                                          SB 67  
                                                         Page 2

   California Supreme Court, that Civil Code Section 1714.45  
   negates liability to voluntary users due to 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  :  This bill was previously passed by the Assembly on July  
3, 1997, and sent to the Governor on July 10, 1997.  The Governor  
thereafter stated that he would sign the bill if it were amended  
to retain the product liability immunity provided by Civil Code  
Section 1714.45 for tobacco distributors and retailers.  These  
amendments were added to the bill on the Assembly Floor on July  
24, 1997.

With the latest amendments, the bill is intended to restore  
product liability law as it relates to tobacco products prior to  
the enactment of Civil Code Section 1714.45 for actions against  
tobacco manufacturers, and their successors in interest.  Pursuant  
to these amendments, all other sellers of tobacco products,  
including but not limited to retailers and distributors, would  
retain the immunity shield from product liability actions.  

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  
even in suits brought by public entities to recover  
tobacco-related costs.

Opponents of this bill assert that Civil Code Section 1714.45  
provides tobacco manufacturers appropriate protection from  
lawsuits from individuals who choose to use an inherently  
dangerous product.

Similar legislation, AB 1603 (Bustamante - Ch. 25, Stats. 1997)  
does not address 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.   
That legislation and SB 67 are complimentary.  

SB 340 (Sher), currently on the Assembly Third Reading file,  
targets suits brought by plaintiffs claiming injuries caused by  
second-hand smoke.

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