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Apartment And Business Owners Beware Secondhand Smoke

Country's First Ruling That Outside Tobacco Smoke May Be A Nuisance

California's penchant against secondhand smoke just took another step forward, but we don't have a definitive, final result just yet..  Our Court of Appeal in Los Angeles ruled that an apartment resident and her parents could sue the management and owners of an apartment complex for exposure to secondhand smoke.

Melinda Birke, a seven-year old asthmatic girl, and her parents (John Birke, her dad, is a civil litigator) rented an apartment in the Oakwood Apartments in Woodland Hills and claimed they were exposed to secondhand smoke when they went outside to the common area around the complex's swimming pools, barbecue areas, children's playground or outdoor dining areas. They also alleged Oakwood Worldwide, the apartment complex manager, actually made the exposure worse by providing ashtrays for tenants, permitting its own employees to smoke, and refusing the Birkes's request to restrict smoking in the outdoor common areas.

Melinda alleged a nuisance cause of action and an Americans with Disabilities Act claim, both of which the trial court dismissed.  On appeal, however, the Court said that a public nuisance must injure the health, offend the senses, or be so obstructive to interfere with a "substantial number" of people's comfortable enjoyment of the property.

The property seems like it's otherwise very enjoyable.  According to the website in the link above, it is "[l]ocated next to Warner Center Business Park, Topanga Mall, and world-class dining, this 20 acre resort-style property fits both business and leisure needs."

Posh. 

But back to the case.  In Birke v. Oakwood Worldwide, The Court of Appeal rejected the trial court's questions whether Oakwood had a duty to ban smoking or whether the Birkes were affected only in a "manner of degree" compared to the other apartment complex residents.  It then reframed the issue and told the trial to decide whether Oakwood failed to limit smoking in common areas that the Birkes had a right to enjoy.  

In other words, the trial court has to hear the nuisance case.  The appellate court ruled the ADA claim was properly dismissed.  By dismissing this second claim, the court took away the ability of the Birkes to recover their attorneys fees. 

This case is far from over, but California's ban on smoking in buildings is about to take a walk outside.  Unlike the statutory prohibition against smoking in buildings or within a certain distance of the entrance of buildings, this case takes a different tack - it alleges a common law violation, so this one's going to be up to the courts - not the legislature - at least not yet. We'll keep you informed - surely this ruling isn't the last we're going to hear about this case.

Meanwhile, if you're an apartment or even a business owner, you'd be wise to consider restrictions on outside smoking and actively take steps to restrict smoking to particular areas. 

Now where did I put that cigar?  Oh, there it is, right next to the scotch.

Thanks, Denny Crane.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, January 13, 2009 at 19:35 Comments Closed (0) |
 
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