TOBACCO CONTROL LAWS

Merrill v. Bosser

The owner of a condominium sued her upstairs neighbor for smoke drifting into her unit. Despite installing air purifiers, the owner and her family sometimes had to sleep elsewhere and, on one occasion, the smoke set off the smoke alarm in her unit. The court found that the neighbor’s drifting secondhand smoke constituted a trespass, a private nuisance, and that it violated the covenant of quiet enjoyment. The court ordered the neighbor to pay $1,000 in damages for the plaintiff’s medical expenses, loss of use of the condominium, and remedial expenses.

Merrill v. Bosser, Case No.: 05-4239 COC 53, 17th Judicial Circuit, Broward County, FL (2005).

  • United States
  • Jun 29, 2005
  • County Court of the 17th Judicial Circuit, Broward County, Florida
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Parties

Plaintiff Robin Haines Merrill

Defendant Jim Bosser

Legislation Cited

Related Documents

None

Type of Litigation

Enforcement Action by a Private Individual or Private Entity
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.
Personal Injury
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.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)
Liability
Measures dealing with criminal and civil liability, including compensation. (See FCTC Art. 19)

Substantive Issues

Environmental Law Violation
An infringement of a protection contained within a statutory environmental law, including public or private nuisance.
Housing Law Violation
A claim for violating a law protecting tenants or home owners, such as the covenant of quiet enjoyment, the warranty of habitability, constructive eviction, or trespass. For example, a tenant could sue a neighbor or the property owner when exposed to drifting secondhand smoke in their home.

Type of Tobacco Product

None

"Although not as egregious as Thomsen, the facts of the instant case demonstrate an interference with property on numerous occasions that goes beyond mere inconvenience or customary conduct. The Plaintiff and her family had recurring illnesses as a result of the smoke, and on several occasions had to vacate the premises."
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