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Oregon Judicial Department Appellate Court Opinions 

Plaintiff, a long-time cigarette smoker, filed a complaint for negligence against defendants, who are cigarette manufacturers. She alleged no current injury. Instead, she alleged that her accumulated exposure to cigarette smoke has increased her risk of contracting lung cancer some time in the future. That risk, she alleged, creates a current need for medical monitoring and smoking cessation treatment, which defendants should now be ordered to provide. Defendants moved to dismiss the complaint on the ground that plaintiff's complaint fails to state a claim for negligence. According to defendants, under Oregon law, a necessary element of any negligence claim is an allegation of present physical injury. Plaintiff argued that her present risk of future injury suffices to establish the injury requirement. The trial court agreed with defendants and dismissed the complaint. Plaintiff appeals, arguing that the trial court erred in dismissing the complaint. We affirm. . . .

In summary, we conclude that the allegations of plaintiff's complaint are legally insufficient to state a claim for negligence under current Oregon law or any reasonable extension of the principles underlying that law. The complaint fails to include an allegation of actual, present harm of any sort, much less the physical harm that ordinarily is required to state a claim for negligence. The complaint instead rests on the allegation of the need for treatment to redress the mere possibility of future harm. In fact, by relying on the mere possibility of future harm--as opposed, for example, to an allegation of the probability or reasonable certainty of future harm--plaintiff has pleaded her claim in the broadest possible terms, as a review of the case law from other jurisdictions makes clear. In that regard, we emphasize that our holding in this case is a narrow one: As pleaded, plaintiff's claim fails as a matter of law. We leave for another day whether a negligence claim predicated on different allegations as to the risk of future harm and the certainty of the need for treatment is cognizable under Oregon law.

For all of the foregoing reasons, we conclude that the trial court did not err in dismissing plaintiff's complaint.

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