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Action on Smoking and Health
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ASH PR: Nonsmoker Wins Damages From Smoking Neighbor [07/22-2]
From: Nonsmoker Wins Damages From Smoking Neighbor
ASH [07/21/05]
Smoking in One’s Home No Longer Legally Protected
A judge has awarded monetary damages to a nonsmoker against a neighbor who smoked in her own condominium. This is just the latest in a growing number of cases where smokers have been penalized for -- or prohibited from -- smoking in their own dwellings, says law professor John Banzhaf, whose organization assisted the plaintiff.
The Florida judge awarded damages based upon claims that smoke infiltrating from the neighbor’s condo unit caused her and her family medical problems, and sometimes even forced them to sleep elsewhere. The nonsmoker represented herself, with assistance from a national antismoking organization.
Plaintiff argued that when smoke drifted from her neighbor's apartment into hers, it constituted trespass, nuisance, and breach of covenant, and the judge agreed on all three counts. In his final judgment order, Judge Robert Lee said “the facts of the instant case demonstrate an interference with property on numerous occasions that goes beyond mere inconvenience or customary conduct.” He awarded plaintiff $1,000, although future health damages are likely to be far greater.
Plaintiff's smoke problem began when her neighbor, a smoker, brought in a tenant who also smoked. Tobacco smoke began to infiltrate her condo, as well as the condos of other neighbors. Efforts to block the smoke physically or through filtration failed. Several times, she and her family, who suffer from respiratory allergies, were forced to sleep elsewhere, and on one occasion the secondhand smoke actually triggered the smoke detector.
“This is an important precedent,” said Chris Bostic, General Counsel of ASH, who worked with the plaintiff in preparing the case. “Hopefully this will spur a wider judicial recognition that tobacco smoke is not merely a nuisance, but a deadly soup of chemicals. ASH is the nation’s oldest anti-smoking and nonsmokers' rights organization."
Actually, notes Banzhaf, this victory is only the latest in a series of cases where nonsmokers were able to successfully sue smokers when smoke from their rental apartment or condo drifted or recirculated into a nonsmoker's apartment. ASH maintains a listing of such cases, and provides assistance to nonsmokers wishing to bring legal action.
Indeed, in other related situations, courts in more than a dozen states have ruled that smoking around a child -- even in one's own home -- can be grounds for the loss of custody. Moreover, in hundreds of cases judges have issued orders prohibiting such smoking -- which is increasingly being considered a form of "child abuse," "child neglect,"
or "reckless endangerment." In addition, three states have banned smoking in the home where a foster child is present, and several more are considering it.
“This is clear evidence," says Banzhaf, "that a man's home is no longer his castle when it comes to smoking. Courts are now applying the same principles to secondhand tobacco smoke which they have long since applied to other dangerous -- or even irritating -- chemicals. We would not tolerate a situation where asbestos or benzene drifted into someone's apartment, and we are now beginning to apply the same rule to tobacco smoke, which is likewise a known human carcinogen."
Click here to read the decision
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