1. Is Common Law Sufficient or Should Statutory Provisions be Pursued? Kathleen Dachille Center for Tobacco Regulation University of Maryland School of Law 500 West Baltimore Street Baltimore, Maryland 21201 (410)706-1294; kdachille@law.umaryland.edu Smoke-Free Multi-Unit Housing Ancillary Meeting October 2007

2. Common Law Nuisance “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts, §821D To be actionable, the nuisance must substantially interfere with enjoyment of property; the interference must be unreasonable. "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance.“ W. Prosser, L AW OF T ORTS, §87

3. Common Law Nuisance Basic Principles Property interest may be through ownership or rights acquired by lease. The same action may constitute a nuisance and a trespass but it need not also be a trespass. Nuisance may be premised upon conduct taking place off of land that has impact on land. Successful plaintiff may receive actual damages (harm to property and harm to enjoyment) and injunctive relief (stop the offending conduct).

4. Common Law Nuisance General Case Examples Courts have found the following to constitute an actionable nuisance: Vibration of building due to blasting on adjacent property; Flooding; Drifting odors or dust from manufacturing; Drifting odor and noise from dog kennel; Noise from drag racing; Golf balls from golf course; Smoke from manufacturing.

5. Common Law Nuisance Specific Cases of Secondhand Smoke Harwood Capital Corporation v. Carey (Boston Housing Court 2005) Defendant-tenants smoked 40-60 cigarettes per day inside condominium (both worked at home). Neighboring owners complained to owner of offending unit. Owner brought action to evict based on breach of lease provision prohibiting tenants from creating a nuisance. Court found that drifting secondhand smoke—at that level— constituted a nuisance sufficient to allow lease termination.

6. Common Law Nuisance Specific Cases of Secondhand Smoke Harwood is instructive at best. Limited impact of a housing court decision. Allowed for eviction based on lease provision; damages were not at issue. Smoking inside unit was excessive, beyond that of a typical smoke drift situation.

7. Common Law Nuisance Specific Cases of Secondhand Smoke Merrill v. Bosser (Broward County Court, Florida, 2005) Condominium tenant smoked excessively in unit; once set off smoke alarm in neighboring unit. Neighbor complained to unit owner and condominium management. Smoker was evicted on technical grounds. Offended neighbor brought action against other owner (not smoking tenant) for damages. Court awarded $1,000 for trespass, breach of covenant of quiet enjoyment, and NUISANCE.

8. Common Law Nuisance Specific Cases of Secondhand Smoke Merrill case has limited impact as a trial court decision in Florida. The invasion was pervasive; the court noted that secondhand smoke exposure is not uncommon or actionable in the ordinary course, only when unreasonable disturbance. Plaintiff had suffered illness and actually evacuated property for some period.

9. Common Law Nuisance Specific Cases of Secondhand Smoke Babbitt v. Superior Court (Court of Appeal, 4 th District, California, 2004 (unreported)) Condo owner smoked cigars on outside patio and smoke drifted into adjacent unit. Adjacent unit owner filed several claims, including nuisance. Trial court dismissed nuisance claim. Appellate court reversed and sent to trial, stating that “[i]ntrusions by smoke and noxious odors are traditionally appropriate subjects of nuisance actions.”

10. Common Law Nuisance Specific Cases of Secondhand Smoke Limitations of Babbitt: Court did not find that a nuisance existed, just allowed plaintiff to proceed to trial. Upside of Babbitt: “[T]he dangers of ‘secondhand smoke’ are not imaginary, and the risks to health of excessive exposure are being increasingly recognized in court.”

11. Common Law Nuisance Specific Cases of Secondhand Smoke (Bad) Lipsman v. McPherson (Superior Court, Middlesex County, Massachusetts 1991) Nuisance claim brought by non-smoking tenant against neighboring smoker-tenant. Smoker prevailed; court found that smoke from 3-6 cigarettes per day was “not substantial and would not affect an ordinary person.”

12. Common Law Nuisance Specific Cases of Secondhand Smoke (Bad) DeNardo v. Corneloup (Supreme Court of Alaska 2007) Tenant brought action (battery, NUISANCE, negligence, trespass) against neighboring tenant and landlord for neighbor’s smoking that drifting into plaintiff’s apartment. Court affirmed trial court’s dismissal of action. Messy procedural case but substantively bad for secondhand smoke drift nuisance claims.

13. Common Law Nuisance Specific Cases of Secondhand Smoke (Bad) DeNardo case stands as bad precedent for those suffering from SHS drift—at least in Alaska. Court noted Utah statute and absence of a similar statute in Alaska. “DeNardo does not cite, nor have we found, any American precedent holding that one tenant owes another tenant a duty to refrain from smoking absent either a provision in the rental agreement or a statute or municipal ordinance prohibiting smoke or declaring smoke a nuisance in multi-party residences.”

14. If not the common law, then what?

15. Utah Nuisance Statute Utah Code Annotated §78-38-1 “A nuisance is anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.”

16. Utah Nuisance Statute Secondhand Smoke Nuisance includes tobacco smoke that drifts into a residential unit from another residential unit or a commercial unit if: Smoke drifts in more than once a week over a two week period; and Smoke interferes with the comfortable enjoyment of life or property. But there is no cause of action if signed, written lease or purchase agreement indicates that smoking is allowed in other units.

17. Utah Statute Cause of Action Nuisance action may be brought by one whose property is “injuriously affected or whose personal enjoyment is lessened,” meaning an owner or tenant. Nuisance action may be brought against: the smoker; the neighbor; or the landlord if the lease contains a smokefree clause, the tenant informs the landlord in writing of the invasion and the landlord fails to take action.

18. Utah Statute Relief Allowed If a nuisance is proven, the plaintiff may request an injunction that requires abatement—or ceasing of— the nuisance and damages.

19. City of Calabassas, California Nuisance Statute, Chapter 8.12 “The city council declares that exposing other persons to second-hand smoke constitutes a public nuisance and may be remedied as such.” Action may be brought by an individual or the City Attorney.

20. City of Dublin, California Nuisance Statute, §5.56.160 “Secondhand smoke constitutes a nuisance.... [A] private citizen may bring a legal action to abate secondhand smoke as a nuisance.”

21. City of Calabassas, California Cause of Action and Relief Action may be brought by individual (private or public action) or City Attorney;. Plaintiff may receive:  Actual damages or $250 for each violation;  Restitution;  Exemplary damages if oppression, fraud, malice or conscious disregard for the public health and safety is proven by clear and convincing evidence;  Attorneys fees; or  Injunction.

22. Nuisance Statutes Basic Provisions  Secondhand smoke drifting from one unit to another constitutes a nuisance.  Public and private right of action created.  Damages and injunction available. But...

23. Fundamental Problem Still left with question of what level of smoke incursion will give rise to a successful cause of action until WE can come up with standards to include in legislation.

24. Kathleen Dachille Center for Tobacco Regulation University of Maryland School of Law 500 West Baltimore Street Baltimore, Maryland 21201 (410)706-1294; kdachille@law.umaryland.edu