New York State Court of Claims

New York State Court of Claims

‘AHMAD v. THE STATE OF NEW YORK, #2000-015-085, Claim No. 102552, Motion Nos. M-62006, CM-62086


Court dismissed claim brought by pro se inmate for failure to state a cause of action where claimant alleged State was liable for development of throat cancer and other injuries because prison commissaries sold loose leaf tobacco products without warning labels. Court fount State had no duty to warn of known danger of tobacco use.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Sulayman 'Ahmad, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 27, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3211 dismissing the claim for failure to state a cause of action is granted. The cross-motion of the claimant for an order awarding him summary judgment upon the liability issue is denied. This is a claim by a 57 year old pro se inmate alleging that from 1995 to January, 2000, while in the custody of the Department of Correctional Services (DOCS), he used Top Tobacco products which were marketed and sold through the commissaries within the various correctional facilities in which he had been housed. The product involved is loose cigarette tobacco packaged in metal cans allegedly manufactured by Top Tobacco Company, distributed by Republic Tobacco Company of Chicago, Illinois, and sold in commissaries under the supervision of DOCS. The claim alleges that as the result of the use of these tobacco products the claimant developed throat cancer, nicotine poisoning, emphysema, partial paralysis of the throat, neck and facial muscles, impaired vision and speech, congestive heart failure and suffered two strokes. The claim proceeds upon a theory of failure to warn because the tobacco cans did not include labels warning of the dangers of smoking such as those contained on packages of pre-rolled cigarettes.

By this pre-answer dismissal motion, defense counsel contends that causes of action for failure to warn concerning the health risks associated with smoking are preempted by the Federal Cigarette Labeling and Advertising Act (the Act), 15 USC § 1331, et seq. (see, Cipollone v Liggett Group, 505 US 504). Defendant contends that since the manufacturer of Top Tobacco has no duty pursuant to 15 USC § 1332 to include warnings on its loose tobacco products, it follows that the State of New York as a vendor of such product has no duty to warn smokers of the health risks associated with use of the product. Defendant's second argument is that the dangers of smoking tobacco products are so open and obvious as to be within the common knowledge of the community thus precluding any duty to warn on the part of the seller. Finally, defendant argues that the Court lacks jurisdiction because the claim does not set forth the dates when claimant's injuries were diagnosed and, presuming that all of these conditions did not arise within 90 days prior to the service of the notice of intention upon the Attorney General on March 28, 2000, the claim must be dismissed as untimely.

Claimant contends that the statute, as interpreted in the Cipollone case, only preempts State and Federal rule making bodies from mandating particular precautionary statements on cigarette labels or in cigarette advertisements and does not preempt State law damage claims. Claimant avers that the claim is timely because the injuries he suffered from exposure to tobacco are of a continuing nature and should be treated similarly to other causes of action for injury due to exposure to latent toxic substances.

Congress enacted the Federal Cigarette Labeling and Advertising Act of 1965 (15 USC § 1331 et seq.) in response to growing concern over health risks associated with smoking cigarettes. The stated purpose of the Act is to establish a comprehensive program to deal with cigarette advertising and labeling so as to provide the public with information regarding the adverse health effects of cigarette smoking and to establish a uniform national policy so that cigarette labeling would not be subject to piecemeal State and local advertising regulations. The Act was amended in 1969 to strengthen the labeling requirements, ban cigarette advertising on radio and television, and amend the preemption provision. The current preemption provision, 15 USC § 1333, provides as follows:
(a) No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.

(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.
15 USC 1332 (1) defines the term cigarette in the following manner:
(A) any roll of tobacco wrapped in paper in any substance not containing tobacco, and (B) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (A).
In interpreting the above quoted statutory provisions, Federal District Court judges in Alabama (Toole v Brown & Williamson Tobacco Corp., 980 F Supp 419 [ND Ala 1977]), West Virginia (Wilson v Brown & Williamson Tobacco Corp., 968 F Supp 296 [SW Vir 1997]), and Illinois (Gonzales v Republic Tobacco Co., ___ F Supp ___ 2000 WL 343236; [ND Ill 2000]) have held that the Act applies only to pre-rolled packaged cigarettes and not to loose tobacco products. In the Toole and Wilson cases the Federal courts went on to hold that since the Act's labeling requirements apply only to cigarettes and not to loose tobacco products there is no preemption of failure to warn causes of actions premised upon State law. This Court agrees with these holdings and finds that the defendant's motion to dismiss on the basis of federal statutory preemption is without merit.

Having ruled out preemption, the Court must now decide whether the claim sets forth a viable cause of action under State law. Under New York law a manufacturer or seller of a product has no duty to warn of dangers that are obvious, manifest and readily discernible (Lauber v Sears Roebuck & Co., ____ AD2d ____ 709 NYS2d 325; Donacik v Pool Mart, Inc., 270 AD2d 921, 705 NYS2d 784; Piper v Kabar Mfg. Corp., 251 AD2d 1050; DaBenigno v Sunbeam Corp., 216 AD2d 248). In that regard "without question, the Federally mandated warning on packages of cigarettes for the last thirty years has adequately warned the public of the dangers of tobacco smoking" and that knowledge will be imputed to smokers who roll their own cigarettes using loose tobacco (Toole v Brown & Williamson Tobacco Corp., 980 F Supp 419 [ND Ala 1977] supra, at 424). In fact, "[t]he extensive information that is now available regarding smoking tobacco precludes a jury question as to whether the risks involved are known by the average consumer" (Consumers of Ohio v Brown & Williamson Tobacco Corp., 52 F 3d 325 [6th Cir 1995]). In the case of Todd v Brown & Williamson Tobacco Corp., 924 F Supp 59 [W.D. Lou. 1996], prison inmates brought a pro se action against the manufacturer of tobacco products based upon a lack of warnings on containers of loose tobacco. In granting the manufacturer's motion to dismiss, the Court, at page 62, stated:
Though they argue that they believed Bugler was a 'safe' tobacco product compared to prepared cigarettes, because there was no health warning on the packaging, this was not a reasonable belief. 'Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community.' Roysdon v R.J. Reynolds Tobacco Co., 849 F 2d 230, 236 (6th Cir. 1988). This knowledge extends to numerous other tobacco products and means of consuming tobacco. The dangers of tobacco use are obvious. That one tobacco product is loose and rolled into cigarettes by the consumer while another is purchased already rolled is a distinction without a difference.
This Court finds, as stated in (Gonzales v Republic Tobacco Co., ____ F Supp ____ 2000 WL 343236; [ND Ill 2000], supra) in which the Federal District Court dismissed a claim brought by a pro se inmate asserting a cause of action based upon the failure to include warning labels regarding the health effects of smoking on containers of loose tobacco, that "[t]he potential risks of smoking are widely known, well-publicized, and within the common knowledge of the community." The potential risks of smoking tobacco have been widely known, well-publicized, and within the common knowledge of the citizens of this State, including inmates, for many years prior to 1995 and claimant's contention of ignorance regarding those dangers is implausible as a matter of law (Small v Lorillard Tobacco Co., 252 AD2d 1, 9, affd, 94 NY2d 43). Since the risks associated with smoking cigarettes, including cigarettes prepared by the consumer using loose tobacco products, has been open and obvious for many years prior to the date on which claimant alleges he began purchasing the product through DOCS commissaries the State was under no duty to warn against the potential danger posed by use of the product. The absence of such duty precludes recovery and requires the dismissal of the claim for failure to state a cause of action.

In view of the dismissal of the claim the Court does not reach the timeliness issue raised by the defendant. Furthermore, in light of the dismissal of the claim the cross-motion is rendered moot.

September 27, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 10, 2000;
  2. Affirmation of Kathleen M. Resnick dated July 10, 2000 with exhibit;
  3. Notice of cross motion for summary judgment filed on July 26, 2000;
  4. Response of Sulayman 'Ahmad dated July 21, 2000, with exhibits;
  5. Claim filed on June 2, 2000;
  6. Letter of Eileen Bryant dated July 31, 2000;
  7. Letter of Sulayman 'Ahmad dated August 1, 2000.