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


Plaintiff Melinda Birke

Defendant Oakwood Worldwide

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product