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. A trial court found that the child did not prove her public nuisance claim because she failed to show that the outdoor secondhand smoke exposure was substantial or unreasonably harmful. The court of appeal agreed that the child’s public nuisance claim failed.
Birke v. Oakwood Worldwide, 2013 WL 2322888 (2013).
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
An infringement of a protection contained within a statutory environmental law, including public or private nuisance.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Yet, several of Birke’s arguments on appeal amount to claims she had no obligation to provide proof of anything other than the fact Oakwood allowed smoking to take place in its outdoor common areas, without a statutory determination of smoking as a nuisance per se on which to rely."
"Birke also argues the trial court exceeded its jurisdiction by issuing a decision countermanding the CARB’s findings of harm from outdoor SHS. She says the trial court had no authority to require proof of harm apart from the CARB’s findings and then reached a result abrogating the CARB’s findings and authority in violation of the separation of powers doctrine. We disagree. Again, the CARB report findings (which Birke does not even cite or identify in the record) are not a substitute for evidence of the elements of Birke’s public nuisance cause of action. “‘[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.’” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) For the reasons the trial court explained in its statement of decision, Birke simply failed to carry her burden of proof."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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. A trial court found that the child did not prove her public nuisance claim because she failed to show that the outdoor secondhand smoke exposure was substantial or unreasonably harmful. The court of appeal agreed that the child’s public nuisance claim failed.