## Facts

- Roxanne Ramsey-Buckingham was a nonsmoker who allegedly developed terminal lung cancer from exposure to environmental tobacco smoke (ETS).
- The ETS allegedly came from cigarettes manufactured or sold by multiple tobacco-company defendants.
- The alleged exposure occurred in various places, including a workplace setting involving Prescott Farms.
- The estate’s administrator sued on theories including strict products liability under Restatement (Second) of Torts § 402A and liability for supplying a dangerous chattel under Restatement (Second) of Torts § 389, along with related negligence theories.
- The trial court dismissed the action for failure to state a claim, concluding that bystanders could not recover in strict liability, the pleadings did not allege a defect, and New Hampshire did not recognize a § 389 claim.

## Issues

1. Whether a § 402A strict-liability claim is adequately pleaded when the complaint does not allege, as separate elements, that the product was both “defective” and “unreasonably dangerous.”
2. Whether New Hampshire permits a bystander (non-user, non-consumer) to seek strict-liability recovery for injury caused by a defective product.
3. Whether New Hampshire recognizes a claim under Restatement (Second) of Torts § 389 and, if so, whether the allegations were sufficient to survive a motion to dismiss.

## Decision

- The Supreme Court of New Hampshire affirmed dismissal of the § 402A strict-liability count because the complaint did not plead “defective” and “unreasonably dangerous” as distinct elements.
- The court rejected a categorical rule barring bystanders from strict-liability recovery, holding that bystander status does not automatically preclude § 402A claims.
- The court reversed dismissal of the § 389 claim, recognizing § 389 as a valid tort theory in New Hampshire and concluding the allegations were sufficient at the pleading stage.
- The court affirmed in part, reversed in part, and remanded for further proceedings consistent with its rulings.

## Legal Principles

- On a motion to dismiss, pleaded facts are taken as true and reasonable inferences are drawn in the plaintiff’s favor; dismissal is proper only when the pleadings do not state a basis for legal relief.
- A § 402A strict-liability claim must allege that the product was (1) in a defective condition and (2) unreasonably dangerous; pleading must include both elements.
- Strict products liability in New Hampshire is not limited to users or consumers; it may extend to persons foreseeably affected by a defective product, including bystanders.
- New Hampshire recognizes Restatement (Second) of Torts § 389, imposing liability on a supplier who knows or has reason to know a chattel is dangerous for its intended use and fails to use reasonable care to inform those expected to use it or be exposed to its use.

## Conclusion

The court held that bystanders are not categorically barred from strict products-liability recovery, but it affirmed dismissal of the estate’s § 402A claim for inadequate pleading of defect and unreasonable danger, while recognizing and reviving the estate’s § 389 dangerous-chattel theory and remanding for further proceedings.


Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 713 A.2d 381 (N.H. 1998)