Birke v. Oakwood Worldwide

Through her father, a child with asthma sued her apartment complex for exposure to secondhand smoke in outdoor common areas such as near the pool. The court found that the child’s claim for public nuisance could proceed. Although the court did not rule on whether the secondhand smoke in this case rose to the level of nuisance (which would be decided at trial), the court allowed the nuisance claim to move forward because the child had shown that (1) the secondhand smoke affected a substantial number of people; (2) her injuries (aggravation of her asthma) were different from those suffered by the general public (increased risk of heart disease and lung cancer); and (3) the apartment complex was required to maintain its premises in a safe condition. The court also said the child could proceed with her private nuisance claim based on interference with her right to enjoy the rental property. The court dismissed the child’s claim that the apartment complex violated the Americans with Disabilities Act (ADA) because the ADA does not apply to this type of residential facility.

Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540 (2009).

  • United States
  • Jan 12, 2009
  • California Court of Appeal, Second District

Parties

Plaintiff Melinda Birke

Defendant Oakwood Worldwide

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Finally, we hold Birke's allegations of Oakwood's participation in the creation of the nuisance is sufficient to withstand a demurrer. “The fact that the defendants' alleged misconduct consists of omission rather than affirmative actions does not preclude nuisance liability.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920, 162 Cal.Rptr. 194; see CACI No.2020 [to establish claim for nuisance, the plaintiff must prove that the defendant “by acting or failing to act, created a condition that ․ was harmful to health [or other enumerated conditions]”].) Here, Birke has alleged that Oakwood, which has banned smoking at enclosed locations in the apartment complex, has encouraged and facilitated the creation of a secondhand tobacco smoke hazard in the outdoor common areas by providing ashtrays for use by tenants and guests who smoke cigarettes and cigars, by permitting its own employees and agents to smoke in those areas of the complex and by refusing the requests of John Birke, Melinda Birke's father, that smoking in the outdoor common areas be limited or restricted. The first amended complaint additionally alleges Oakwood, through one of its authorized representatives, has admitted it made an affirmative business decision not to restrict smoking cigarettes in the outdoor common areas, at least in part to aid its effort to market the apartments to an international clientele. In our view, these allegations are sufficient to withstand a demurrer to the nuisance cause of action."