UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HAZEL SACKS, Personal

Representative of the Estate of

George Sacks, Jr.; JUNE SACKS, In

her own right and as Personal

Representative of the Estate of

No. 96-2562

Leroy Sacks,

Plaintiffs-Appellants,

v.

PHILIP MORRIS, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CA-95-1840-WMN)

Submitted: March 3, 1998

Decided: March 23, 1998

Before WILLIAMS and MICHAEL, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark E. Herman, Baltimore, Maryland, for Appellants. Robert C.

Heim, John J. Haggerty, DECHERT, PRICE & RHOADS, Philadel-
phia, Pennsylvania; James K. Archibald, Marina Lolley Dame, VENABLE, BAETJER AND HOWARD, L.L.P., Baltimore, Maryland, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Hazel and June Sacks appeal from the district court's order granting Appellee's motion to dismiss for failure to state a claim upon

which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6).

After granting Appellee's motion to submit the appeal on the briefs,

we find no reversible error and affirm.

In June 1992, Leroy F. Sacks and George L. Sacks perished in a

fire when a lit cigarette manufactured by Appellee ignited a sofa in

the living room of their apartment. Appellants filed this action with

the district court alleging that Appellee's failure to manufacture a

"fire-safe" cigarette caused the fire that killed Leroy and George

Sacks.

In their complaint, Appellants asserted violation of the Maryland

Consumer Protection Act, strict liability in tort, negligence, breach of

implied warranties, and wrongful death. The district court concluded

that Appellants could not establish that cigarettes were "defective and

unreasonably" dangerous under Maryland law and therefore could not

state a claim upon which relief could be granted. Appellants timely

appealed.

Appellants assert that Appellee is strictly liable for the injuries

caused by their product because Appellee had the technology to manufacture a "fire-safe" cigarette, but failed to produce and market the

less dangerous cigarette and intentionally withheld that technology

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from the general public. In Phipps v. General Motors Corp., 363 A.2d

955 (Md. 1976), the Maryland Court of Appeals set forth the elements

of a strict liability claim: (1) the product was in a defective condition

at the time it left possession or control of the seller; (2) it was unreasonably dangerous to the user or consumer; (3) the defect was a cause

of the injuries; and (4) the product was expected to and did reach the

consumer without substantial change in condition. See 363 A.2d at

958, 963. In a strict liability case, the court focuses on the product

rather than the manufacturer. See id. at 958; Simpson v. Standard

Container Co., 527 A.2d 1337, 1339 (Md. App. 1987). Maryland

courts often apply the "consumer expectation" test to determine

whether a product has a design defect. See, e.g. , Simpson, 527 A.2d

at 1340 (citing Kelley v. R.G. Indus., 497 A.2d 1143 (Md. 1985)). The

product must be both in a defective condition and unreasonably dangerous at the time it was sold for a design defect to exist. See Phipps,

363 A.2d at 959. These two factors are measured against the expectations and knowledge of the ultimate consumer. See id. Appellants

cannot satisfy the consumer expectation test because the ordinary

consumer is aware of the inherent burning characteristics of cigarettes

and their ability to ignite fabric. See, e.g. , Greinsbeck v. American

Tobacco Co., 897 F. Supp. 815, 825 (D.N.J. 1995) ("It can hardly be

disputed that adults of legal smoking . . . age know that cigarettes

must burn in order to be smoked. Nor can an adult claim to be ignorant of the dangers associated with burning items such as cigarettes.").

Appellants assert, however, that their claim does not fail under the

"risk utility" test. "Under the `risk utility' test, a product is defective

as designed if the risk or danger of the product outweighs the product's utility." Simpson, 527 A.2d at 1340. The factors considered

under the risk-utility test are:

(1) the usefulness and desirability of the product, (2) the

availability of other and safer products to meet the same

need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common

knowledge and normal public expectation of the danger

(particularly for established products), (6) the avoidability

of injury by care in use of the product (including the effect

of instructions or warnings), and (7) the ability to eliminate

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danger without seriously impairing the usefulness of the

product or making it unduly expensive.

Phipps, 363 A.2d at 959, n.4.* Appellants' claim falls short under the

risk-utility test because the danger that a cigarette can start a fire is

both obvious and commonly known to the general public. See

Griensbeck, 897 F. Supp. at 825 (discussing consumer awareness of

fire hazard posed by cigarettes). The obvious nature of the danger and

the ability to avoid injury by exercising reasonable care outweigh the

other risk-utility factors. See Rock v. Oster Corp., 810 F. Supp. 665,

666-67 (D. Md. 1991) (noting that the danger posed by hot oil in a

fondue pot was blatant and that on balance the obviousness of that

danger outweighed the other factors), aff'd, No. 92-1147, 1993 WL

5896 (4th Cir. Jan. 14, 1993) (unpublished). Thus, Appellants cannot

establish that Appellee's product is unreasonably dangerous in that

the product is "`dangerous to an extent beyond that which would be

contemplated by the ordinary consumer who purchases it, with the

ordinary knowledge common to the community as to its characteristics.'" Phipps, 363 A.2d at 959 (quoting Restatement (Second) of

Torts § 402A cmt. i).

Accordingly, we affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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*The Appellee asserts that the risk-utility test is solely applicable to

products that do not function properly for their intended use and is therefore inapplicable in this action. However, the Maryland Court of Appeals

has applied the risk-utility test in a case involving a non-malfunctioning

product. See Ziegler v. Kawasaki Heavy Indus. , 539 A.2d 701, 704-06

(Md. App. 1988) (application of risk-utility test in absence of any allegation that the product malfunctioned). Thus, it does not appear that the

application of the risk-utility test is limited only to malfunctioning products. See also Klein v. Sears & Roebuck and Co. , 608 A.2d 1276, 1280-

81 (Md. App. 1989); Valk Mfg. Co. v. Rangaswamy , 537 A.2d 622, 626-

27 (Md. App. 1988).

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