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The Connecticut Supreme Court decided two tobacco cases in 2016: Izzarelli v. R.J. Reynolds Tobacco Co. and Bifolck v. Philip Morris, Inc. Both concern the application of the Restatement of Torts to product liability tort claims by smokers against tobacco companies. These cases were a missed opportunity for the Supreme Court to bring Connecticut tort law up to date.

Izzarelli concerned comment (i) to § 402A of the Restatement (Second) of Torts, which states in infamous part: “Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.” Izzarelli didn’t have to repudiate that comment because the case concerned what the plaintiff claimed was bad tobacco—i.e., cigarettes that had enhanced addictive properties because of their design and manufacturing features. The majority of the court then disposed of the case in accordance with its half-century of precedents under § 402A.

We write today because much of the Restatement (Second) of Torts was officially replaced by the Restatement (Third) of Torts in 1998. The majority said the Restatement (Third) was not properly before the court, but two justices, in a concurring opinion by Justice Zarella, said the case nevertheless should be decided in accordance with the most recent common law rules approved by the nationally recognized tort scholars responsible for the Restatement of Torts.

Perhaps Izzarelli, which was an oddball factually, was not the most appropriate case to decide whether the Restatement (Third) should apply, but Bifolck, which was a case about ordinary cigarettes, certainly was. Indeed, the court ordered supplemental briefing and reargument on that very issue. After reargument, the Bifolck 5-2 majority held that they were not convinced there was any pressing reason to adopt the most recent version of the Restatement.

The Restatement (Third) provides a pure risk-utility standard for design defect cases based on proof of a reasonable alternative design except when the risk is manifestly unreasonable. As Justice Zarella points out, a consensus seems to have recently developed that proof of some safer and reasonable alternative design is the best way to provide the jury with an objective basis to decide the case. But the majority decided to stick with the Restatement (Second)—with which it was comfortable, and had been applying since the 1960s.

So these cases were missed opportunities. They were especially good cases to bring Connecticut tort law up to date because all seven justices agreed on the result.