Start From Home!

This section contains and accepts information on tobacco issues relating to private homes, apartments, and other residential areas.

Secondhand Smoke and Litigation in Apartments and Condos

written by Regina Carlson, Executive Director, New Jersey GASP

A body of case law is emerging that holds landlords responsible for exposing tenants to environmental tobacco smoke (ETS). Tenants have sued on the basis of nuisance, breach of statutory duty to keep the premises habitable, breach of the common law covenant of peaceful enjoyment, negligence, harassment, battery, and intentional infliction of emotional distress.

In one of the first cases, in 1991, a Massachusetts woman sued her landlord because she was constantly exposed to the secondhand smoke of another tenant. She suffered asthma attacks, labored breathing, wheezing, prolonged coughing, clogged sinuses, and frequent vomiting. That case was settled in 1992 for an undisclosed amount of money. (Donath v.Dudah)

A year later, a landlord in Oregon was sued by a tenant who was affected by cigarette smoke from another tenant who lived directly below. The tenant alleged that the landlord had breached his statutory duty to keep the premises habitable and the covenant of peaceful enjoyment which the common law implies in every rental agreement. A six-person jury unanimously found a breach of habitability, reduced the tenant's rent by 50 percent, and awarded her payment to cover her doctor's bills. (Fox Point Apts. v. Kippes)

The Pentony case in New Jersey, in which a couple sued because of smoke entering their condo unit, was the subject of three stories in the NEW YORK TIMES, numerous other reports around the nation, and a story in the NATIONAL LAW JOURNAL in 1994. It was resolved when a judge ordered the apartment complex directors to resolve the problem. The terms of the settlement are confidential.

In 1996, Roy Platt sued his downstairs neighbor and his condo association because of cigarette smoke that entered his open windows from the unit below. In the case, filed in Los Angeles Superior Court in June, 1996, Platt contended that he was not overly sensitive to smoke, but that the amount of smoke wafting into his home had, at times, make him sick to the point of vomiting. "I have friends who smoke and they find it difficult to be here," he said.

(LOS ANGELES DAILY JOURNAL, June 28, 1996, and LOS ANGELES TIMES, July 5, 1996) Injunctive relief from ETS may be available to tenants for only the cost of their time, energy, and several hundred dollars. In April of 1996, the Superior Court in Long Beach, California issued a three-year restraining order to prohibit smoking by a condo owner in his garaage (which he also used as an office.) The ban was sought by other condo owners, Richard and Marcia-Luna Layon, because smoke was entering their unit from the garage. (Layon et. al. vs. Jolley et. al.) The Layons brought the action themselves, without an attorney.

Legal redress was obtained by another person lacking counsel. In 1994, a Massachusetts woman suffering from pulmonary fibrosis won a temporary injunction preventing her landlord from renting the units below her to smokers. (Snow v. Gilbert)

In a related development, there are now dozens of cases in which people have been ordered not to smoke in their homes around children. Courts have rendered those decisions at the urging of child-welfare agencies seeking to protect smoke-sensitive children and at the request of parents in child custody cases.

(This information has been prepared by Regina Carlson, Executive Director of New Jersey GASP, and is used with permission.)