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).
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.
"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."
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. 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.