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Tenants Right to Smoke-Free Environment

Restrictions on smoking inside commercial buildings and some residential projects have become commonplace. A few cities have prohibited smoking not only indoors but outdoors on the public streets. Private landowners, recognizing that smokers need to indulge their habit somewhere, have generally allowed smoking outdoors on the project grounds. A recent case decision [ Birke v. Oakwood Worldwide (Jan. 14, 2009)] casts doubt on whether such permission will survive.

The case concerns a five-year-old girl living with her parents at an apartment project. The project prohibited smoking indoors, but allowed it in the outdoor common areas. Unfortunately, the girl suffered from allergies and asthma symptoms. She was affected by second-hand smoke. Her father sued the project on her behalf. The owner of the project filed a pre-trial motion to dismiss.

The main legal issues before the court consisted of public nuisance, private nuisance, premises liability, and violation of the Americans with Disabilities Act. The court ruled that a "public nuisance" existed because the girl suffered a special injury. If a supposed victim of a public nuisance suffers an injury resulting from the smoke different in kind, as opposed to differing in degree, from those injuries suffered by the general public, then a valid claim arises. The court found that while second hand smoke creates risks of heart disease and lung cancer among the general public, the girl displayed different reactions. So a "public nuisance" existed.

Her claim would have survived anyway as a "private nuisance," because the girl also suffered personal injury and the landowner (in addition to the smokers who were not sued) was responsible by allowing outdoor smoking. The court did not ask whether, as a practical matter, the owner could have prevented all outdoor smoking since persons other than his tenants might have lit up their smokes.

Finally, the court ruled that the federal ADA did not apply to residential projects.

It is unknown how the case will eventually turn out. At minimum, the project will be forced to defend or perhaps to settle the case before trial. That is trouble enough. The owner of the project probably thought he was doing a good thing by affording some outlet for smokers, while recognizing the rights of those offended by second-hand smoke. It was not enough.

Some aspects of the court's decision are troubling. First, the project rented an apartment to a family. The girl was technically not a tenant. Moreover, the common area where the smoking occurred was not itself rented to anyone. Yet the court ruled that the owner held a legal duty to provide the girl with a "reasonably safe" environment in the common areas as well, and that duty was breached.

The medical evidence now condemns smoking as a risk to one's health. It is difficult to withstand the impulse to impose bans on smoking, wherever and whenever it occurs. Clearly this court rode the wave of antipathy toward smoking. But at the same time the court created, and my opinion, a precedent with far-reaching, and perhaps dangerous, implications. Under its decision a landlord must adopt rules designed to safeguard the most vulnerable occupant, even if that occupant represents an exception to the majority of other occupants. Inevitably, the majority will lose some rights in the process. Whether that result is reasonable, fair, or in our common best interest as a society, I very much doubt. And I am not a smoker.

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