Waiting to Exhale? The Future of Tobacco Litigation Columbus, Ohio October 27, 2006. A Word from Our Sponsors…. Smoke-Free Environments Law Project Jim Bergman, J.D., Director, Ann Arbor, Michigan Tobacco Control Legal Consortium Doug Blanke, Executive Director
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Waiting to Exhale? The Future of Tobacco LitigationColumbus, Ohio October 27, 2006
A Word from Our Sponsors…
Smoke-Free Environments Law Project
Jim Bergman, J.D.,Director,
Ann Arbor, Michigan
Tobacco Control Legal Consortium
Doug Blanke, Executive Director
William Mitchell College of Law
St. Paul, Minnesota
Secondhand smoke seepage complaints increase
SFELP now receives more complaints from individuals about secondhand smoke seepage in apartments and condominiums than any other, including workplaces complaints
Why All The Fuss?
Why is there such concern about secondhand smoke in apartments, condominiums and other multi-unit residences?
Secondhand Smoke is Deadly
U.S.Department of Heralth and Human Services, the Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (2006)
“Breathing Even a Little Secondhand Smoke Can Be Deadly”
Tobacco Smoke Travels
“Tobacco smoke travels from its point of generation in a building to all other areas of the building. It has been shown to move through light fixtures, through ceiling crawl spaces, and into and out of doorways. Building occupants are at risk for irritant, allergic, acute and chronic cardiopulmonary and carcinogenic adverse health effects.”
John Howard, M.D., Chief of the CA Division of OSHA
Air Cleaners and Smoke Eaters ARE NOT protection against the health hazards of secondhand smoke.
ASHRAE Health Warning
“At present, the only means of effectively eliminating health risk associated with indoor exposure is to ban smoking activity.”
American Society of Heating, Refrigerating & Air Conditioning Engineers (ASHRAE), June 2005
Nov. 2004 study
Center for Energy and Environment, MPLS
Sealing Treatments provide
only marginal benefit
if sole method of treatment
What Can Landlords and Condo Boards Legally Do
Apartment and Condominium owners and Condominium Boards are permitted by federal and state law to adopt total smoke-free policies.
Prohibiting Smoking in Multi-Unit Housing is Legal
Common Law Permits Smoke-free Policies
Under Common Law, a landlord can restrict tenant activities as long as no constitutional right is violated.
There is no constitutional right to smoke.
There is No Right to Smoke
HUD Legal Counsel: “The right to smoke or not to smoke is not a right that is protected under the Civil Rights Act of 1964 because smokers are not a protected class under federal law.”
HUD Legal Counsel Letter, July, 2003
Prohibiting Smoking in HUD Housing is Legal
Adopting a Smoke-Free Policy
To implement a smoke-free policy in a multiunit dwelling add smokefree provisions:
covenants (CC&Rs) for condominiums.
Remedies for Second-hand Smoke Infiltration
Tenants negatively impacted by secondhand smoke actually have the right to seek legal action against landlords who do not adequately protect them from second hand smoke.
Condominium Owners may take action against the offending owner and the condominium board.
Aggrieved Non-Smoker should first:
. Get a Letter from their treating physician
. Measure Exposure to SHS
. Check for a Nuisance Clause that prohibits activities that “unreasonably interfere” with enjoyment of the unit
. Check for laws or policies prohibiting smoking in any part of the complex.
Laws Requiring Smoke-Free Common Areas
Local laws requiring smoke-free common areas in
multi-unit residential buildings are fairly common.
Areas covered include: hallways, entryways, laundry
rooms, common or recreation areas.
Fair Housing Act
FHA prohibits discrimination in housing against persons with disabilities including:
Renters(except single-family homes rented without the use of a broker)
Condo Owners(except condo complexes of less than four units).
FHA Hurdles Con’t…
If non-smoker successfully shows a second-hand smoke disability, the opposing party (landlord, condominium board, or smoking condo owner) can prevail if there is a “reasonable accommodation” of the non-smoker’s need for protection from SHS.
What is Reasonable Accommodation?
HUDHousing: an agreement to make an existing building smoke free for future tenants was considered a “reasonable accommodation” U.S. Department of Housing and Urban Developmentand Kirk and Guilford Management Corp. and Park Towers Apartments
Renters of Private Housing and Condominium Owners:may want to try seeking a similar remedy without grandfathering current tenants.
Condos and Complaints
State Housing DiscriminationLaws
State Disability Case
Massachusetts court ruled that a residential tenant who experienced itchy eyes and tiredness from exposure to secondhand smoke did not qualify as disabled. (Donnelley v. Cohasset Housing Authority, 16 Mass. L. Rep. 318 (Mass. Super. Ct. 2003).
Alternative Dispute Resolution
Consider arbitration or mediation as an alternative to filing a lawsuit.
Lawyers are expensive and the outcome of a suit is uncertain.
Condo owners should check condominium documents to see if alternative dispute resolution required before filing a lawsuit.
Condo Owners:Whom Do You Sue?
• Thus far, no condo owner has won against a condo ass’n, although possibly some settled.
• Standard condo agreement requires the litigating owner to pay the legal fees of the ass’n if he or she loses.
• Condo ass’ns have acess to an attorney and considerable financial resources.
Common law remedies tenants or condo owners may use:
• Breach of warranty of habitability and/or breach of warranty of quiet enjoyment
• Nuisance law violation
• Negligence, harassment, trespass, constructive eviction, intentional infliction of emotional distress, battery
• Can argue that secondhand smoke is “trespassing” into plaintiff’s unit.
• No consensus among courts on whether a substance can trespass.
For example, in Alabama, dust and gas can trespass, but not heat and noise.
SHS: Nuisance or Not?
Smoke from three to five cigarettes a day was not considered a nuisance to a Massachusetts court (Lipsman v. McPherson)
Massachusetts jury found that 40 to 60 cigarettes a day was a nuisance. (Harwood v. Carey)
Florida court found that SHS was a nuisance; but found that it was beyond mere inconvenience to the plaintiff (Merrill v. Bosser)
Nuisance Clause: Condos
Most Condominium Agreements have a “Nuisance Clause.”
Located in the Condominium CC&Rs (founding documents) and may also be in the Condominium Rules
Warranty of Habitability
Landlords are Responsible for Ensuring Rental Housing is Fit for Human Occupancy.
Under current caselaw, the greater the SHS exposure, the stronger the argument that the exposure is a breach of the warranty of habitability.
Covenant of Quiet Enjoyment
Protects a tenant from serious intrusions that impair the character of value of the premises.
Condominium owners typically sign an agreement that includes the covenant of quiet enjoyment.
Successful Condo Cases against Smokers
• Harwood v.Carey(Boston Housing Court, 2005):
jury held that tenants of a condo unit who together smoked 40-60 cigarettes a day had committed a nuisance and could be evicted by the owner of the condo unit.
What do these cases have in common?
Excessive Smoke Involved
Successful Condo Cases Con’t
Layon v. Jolley(L.A. Superior Court, 1996)
Condo owner successfully enjoined a fellow owner from smoking in a shared garage under the owner’s condo. The judge determined the smoker was harassing the plaintiff, who lived directly above the garage.
Successful Suits Against Landlords
Fox Point Apt. v. Kipples: (Ore. Dis. Ct. 1992)
a jury found that a landlord breached the warranty of habitability when he allowed a smoker to move below a tenant who suffered respiratory problems as a result of the SHS.
Successful Suits Against Landlords
50-58 Gainsborough St. Realty Trust v. Haile
(Boston Housing Court 1998)
Court held that a landlord breached the covenants of habitability and quiet enjoyment to a renter whose apartment was located over a bar.
Hope for Future Lawsuits
“The dangers of secondhand smoke are not imaginary, and the risks to health of excessive exposure are being increasingly recognized in court… The inherent capacity of the common law for growth and change is its most significant feature. It is constantly expanding in keeping with progress of society”
(Cited in a 2004 case in CA allowing a condo owner to proceed with a claim against a neighboring smoker)
Key Resources Online
MISmokeFreeApartment web site:
SFELP Apartments site:
SFELP Condominiums site:
Tobacco Free Utah apartment/condo site