Two opposing decisions were rendered by two different judges in two factually and legally similar groups of smoking lung cancer cases. In Harrell et al. and Boston et al., asbestos defendants filed nearly identical motions for summary judgment, arguing that the plaintiffs could not recover because (1) the plaintiffs knew the hazards of smoking and assumed the risk, and (2) were contributorily negligent. Summary judgment was granted in one group (Harrell et al.) and denied in the other (Boston et al.).
In Maryland, in order to assert the affirmative defense of assumption of risk, defendants must show that the plaintiff (1) had knowledge of the risk of the danger; (2) appreciated the risk; and (3) voluntarily confronted the risk of danger. In order to assert the defense of contributory negligence, it must be demonstrated that the injured party acted with knowledge and appreciation, either actual or imputed, of the danger of injury which their conduct involved.
In Harrell et al., the court found that the defendants presented substantial evidence that the addictiveness of cigarettes was common knowledge for decades and cited information in support. The link between smoking and lung cancer was common knowledge since the 1950s. Likewise, Maryland courts have concluded that the ordinary consumer was aware of smoking hazards since the 1950s. The plaintiffs failed to show an absence of general public awareness of these hazards; although the tobacco industry had a substantial role in shaping public awareness, the existence of information downplaying the dangers of smoking did not undermine the ordinary consumer’s ability to contemplate the dangers of smoking. Further, the defendants presented substantial evidence that plaintiffs voluntarily confronted the risks associated with smoking. Despite warning labels since 1965, the plaintiffs continued to smoke and there was no question of fact as to whether plaintiffs voluntarily confronted the risks related to smoking. Since lung cancer was a single, indivisible injury incapable of apportionment, apportioning causation or damages between smoking and asbestos was impermissible; since the plaintiffs’ smoking caused some portion of lung cancer, they were barred from recovery.
In Boston et al., the court was persuaded by the plaintiffs’ argument that they did not assume the risk of lung cancer because the causal connection between smoking and lung cancer was not common knowledge; further, even if the causal connection was common knowledge, the synergistic effect of smoking and asbestos exposure was not, thus plaintiffs could not knowingly assume the risk or contributed to their increased chances of contracting lung cancer. Summary judgment was not appropriate because there was a genuine dispute of material fact concerning plaintiffs’ knowledge about the danger of lung cancer and smoking. Further, the defenses of assumption of risk and contributory negligence both required factual determinations about plaintiffs’ level of knowledge and appreciation of the increased risk, and when the plaintiffs acquired the knowledge that smoking caused lung cancer. The court summarized the conflicting information presented by plaintiffs and defendants as to when it was common knowledge that smoking caused lung cancer in support of its finding that when the dangerous nature and effect of smoking became common knowledge was far from indisputable. Further, assuming that plaintiffs did have knowledge, summary judgment still failed because the plaintiffs did not have knowledge of the synergistic relationship between smoking and asbestos. The court recognized the lack of Maryland precedent on the issue of synergy, but pointed to other federal courts which have found that there was no assumption of risk or contributory negligence unless plaintiffs were warned or made aware of the dangers of smoking and the synergistic role played by dual exposure to tobacco and asbestos. Summary judgment was denied.
It remains to be seen which of these conflicting opinions will become Maryland precedent.