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Shaw v. Brown & Williamson Tobacco Corp. - 973 F. Supp. 539 (D. Md. 1997)

Rule:

In order to succeed on a cause of action for negligent misrepresentation in Maryland, a plaintiff must demonstrate that: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffered damage proximately caused by the defendant's negligence.

Facts:

A couple filed a products liability action against a tobacco corporation alleging battery, defective design, negligent misrepresentation, breach of warranty, and loss of consortium. The couple alleged that the husband developed lung cancer after breathing the second-hand cigarette smoke of his trucking partner. The tobacco corporation filed a motion to dismiss and a motion to dismiss two counts of the couples' amended complaint. The tobacco corporation contended that the couple's claims for negligent misrepresentation, negligent failure to warn, and intentional misrepresentation were preempted by § 5 of the Public Health Cigarette Smoking Act of 1969.

Issue:

Should the court grant the tobacco company's motion to dismiss?

Answer:

Yes

Conclusion:

The court granted the tobacco corporation's motion to dismiss and granted in part and denied in part its motion to dismiss two counts of the amended complaint. In evaluating the claim, the court had to ascertained whether the failure to warn claims of a non-smoker constituted claims based on "smoking and health," under the Act. The court found that the claims were only based on the smoking and health of the smoker, and therefore, the couple's claims for negligent misrepresentation, negligent failure to warn, and intentional misrepresentation were not preempted by § 5 of the Act.

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