A U.S. District Court in Maryland and the Supreme Court of the United States have found that there is no fundamental right to smoke and that the act of smoking is entitled to only a minimal level of protection under the Equal Protection Clause. Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001); McGinnis v. Royster, 410 U.S. 263 (1973).
Common Law Cases
In addition to federal disability laws, residents affected by secondhand smoke drift can seek legal redress under several common law theories. Most cases are settled, but the few reported cases provide insight into which causes of action are successful and the standard of proof required.
- Ewen v. Maccherone (N.Y. App. Div. 2011): A New York appellate court held that a resident smoking in the “privacy of their own apartment” did not rise to the level of private nuisance or negligence. The plaintiffs, owners of luxury condo in Manhattan, brought suit against their neighbors and condominium association to recover damages for “excessive cigarette smoke” seepage that forced them to frequently “vacate their unit…at night.” The trial court found in favor of the plaintiff, but on appeal the decision was reversed on the grounds that no statute or condominium bylaw required the defendants to prohibit smoking inside their apartment or ensure that cigarette smoke did not drift into other residences.
- Poyck v. Bryant, et al. (N.Y. Civ. Ct. 2006): In this New York case, a landlord ignored repeated accommodation requests from a family affected by secondhand smoke drift. The family subsequently vacated the apartment. When the landlord sued for unpaid rent, the family successfully raised the defense of constructive eviction. The court ruled that “in the context of implied habitability, secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise and water leaks and extreme dust penetration.”
- Christiansen, et al., v. Heritage Hills #1 Condo. Ass’n (Colo. Dist. Ct. 2006): A condominium association successfully defended its smoking ban against two residents that refused to smoke outdoors. After unsuccessful attempts to eliminate secondhand smoke drift the condo association enacted a total smoking ban. The ban was upheld because it “was reasonably investigated, drafted and passed by three out of four owners after years of trying to address the problem by other means.”
- Harwood Capital Corp. v. Carey (Boston Hous. Ct. Dept. 2005): The defendants were residents who smoked approximately 40 to 60 cigarettes per day inside of their condominium. Both of them worked at home. Neighboring residents complained to the owner of the offending unit. The owner brought an action to evict the smoking residents based on the breach of a lease provision, which prohibited residents from creating a nuisance. The court found that drifting secondhand smoke, at that level, constituted a nuisance sufficient to permit lease termination.
- Merrill vs. Bosser (Fla. 17th Cir. Ct. 2005): A condominium resident smoked excessively in his unit, to the point where the smoke alarm went off in the neighboring unit. The neighbor complained to unit owner and condominium management. The offending resident was evicted on technical grounds. The neighbor brought an action against the unit owner, not against the smoking resident, for damages. The court awarded $1,000 for trespass,breach of covenant of quiet enjoyment, and nuisance.
- Heck v. Whitehurst Co. (Ohio Ct. App. 2004): Plaintiff initiated rent abatement action because the landlord failed to eliminate secondhand smoke from his apartment. Upon moving in to his apartment the plaintiff noted the bedroom smelled strongly of cigarettes and notified the superintendant and landlord. After several months of inaction the plaintiff placed his rent in escrow and initiated suit. The court determined that cigarette smoke was infiltrating the plaintiff’s apartment and that the landlord had not made the repairs necessary to keep the apartment in a fit and habitable condition. As a result the lease was terminated and the plaintiff was awarded a 50% rent reduction.
- Babbitt v. Superior Court (Ca. Ct. of App. 4th Dist. 2004) (unreported): A condo owner smoked cigars on an outside patio and smoke drifted into the adjacent unit. The owner of the adjacent unit filed several claims, including a nuisance action. Although the trial court initially dismissed nuisance claim, the appellate court reversed and sent the case to trial, stating that “[i]ntrusions by smoke and noxious odors are traditionally appropriate subjects of nuisance actions.” The appellate court also noted that “the dangers of ‘secondhand smoke’ are not imaginary, and the risks to health of excessive exposure are being increasingly recognized in court.”
- Dworkin v. Paley (Ohio Ct. App.1994): The plaintiff, a tenant, brought suit against his landlord, who was a smoker and occupied the apartment one floor below. The tenant sent a written notification to the landlord, informing her that the smoke was moving through the heating and cooling systems, causing the tenant physical discomfort. The landlord rejected the tenant’s suggestion of sealing off the heaters and using portable heating equipment; thereafter, the tenant sent notice and vacated the premises. The tenant alleged a breach of the covenant of quiet enjoyment under Ohio Rev. Code Ann. § 5321.04 to recover his security deposit. The court held that “[t]he covenant is breached when the landlord obstructs, interferes with, or takes away from the tenant in a substantial degree the beneficial use of the leasehold.” (internal deletions and quotations omitted).
A resident who is sensitive to tobacco smoke can use the Fair Housing Act (FHA) to seek relief from secondhand smoke drift. The FHA prohibits discrimination in housing against persons with disabilities and has been successfully used to help residents suffering from the effects of secondhand smoke drift.
- Matarese v. Archstone Pentagon City (E.D. Va. 2011): The court held a Virginia management company discriminated against a resident by failing to accommodate her sensitivity to paint fumes and secondhand smoke. Despite living in the apartment for 18 years, the resident’s repeated transfer requests were denied and her lease was not renewed. While the court admitted the resident failed to prove she was disabled under the FHA, she prevailed because the building management regarded her as disabled (at trial, employees of the management company testified that the resident suffered from a chemical sensitivity to mold, smoke, and paint fumes). Ultimately, the court awarded the resident compensatory and punitive damages.
- U.S. Dep’t Housing and Urban Dev. (HUD) v. Magnolia Walk Apartments II, Ltd., et al. Case No. 04-10-0110-8 (2011): On September 29, 2011 HUD charged a Florida property owner with violating the FHA for refusing to relocate a resident that repeatedly complained of secondhand smoke drift. According to the charging document the resident, who suffers from a chronic respiratory illness, was twice taken to the emergency room as a result of secondhand smoke exposure. Despite multiple hospital stays, a physician’s recommendation and several written complaints by the resident, the owner and management company refused to make a reasonable accommodation. The case will be heard later this year and the judge may award monetary damages, payment of attorney fees as well as order an injunction.
- Donnelley v. Cohasset Housing Authority (Mass. Super. 2003): A Massachusetts court ruled that the plaintiff did not qualify as a disabled person under a state law modeled after the Americans with Disabilities Act (ADA) because no major life activity was limited by her exposure to secondhand smoke. The plaintiff lost despite presenting evidence that she suffered from a “sore throat, headaches…itchy eyes…[and] difficulty breathing.” Although not controlling outside of Massachusetts, the ruling demonstrates the high evidentiary threshold required to establish a need for reasonable accommodation.
- In re U.S. Dep’t Housing and Urban Dev. (HUD) and Kirk and Guilford Management Corp. and Park Towers Apartments, HUD Case No. 05-97-0010-8 (1998): A resident entered into a reasonable accommodation agreement with her landlord to address the resident’s respiratory condition, which was aggravated by secondhand smoke drift. The agreement required the building to prohibit all new residents from smoking in their apartments and relocate smokers to a separate part of the building.