2009-01-14, 11:27

Apartment Owner Sued for Common Area Second Hand Smoke

By: Multifamily Real Estate Industry Team
In a ruling issued earlier this week, the 2nd District Court of Appeal in Los Angeles ruled that a 7-year old asthmatic girl had standing to file suit as a tenant against an apartment owner over secondhand smoke in outdoor and common areas of the community, such as swimming pools, barbecues, playgrounds and dining facilities. (Birke v. Oakwood Worldwide, 09 C.D.O.S. 409).

The suit was brought by the girl’s father, a California civil litigator, who claims that the court’s ruling establishes a national precedent. As reported in law.com, the girls’ father asserted that: "This is the first time," he said, "that a court anywhere in the country -- and I can say that with some certainty because we did the research -- has ruled that outdoor secondhand smoke can constitute a public and private nuisance." http://www.law.com/jsp/article.jsp?id=1202427433265

Noteworthy is that a concurring judge in the opinion indicated that he would have also let the case move forward under the federal Americans with Disabilities Act. Can you imagine the possible wave of class action suits against apartment owners lurking in the wings under the ADA for injuries caused by second hand smoke?

This case underscores the need for apartment owners and managers, to the extent they have not previously done so, to consider imposing a clearly defined smoke free policy on their entire communities, including outdoor and common areas. If adopted, the policy should be specifically included in the community’s form apartment lease and associated rules and regulations, as well as conspicuously posted in the community’s common areas.

(This entry posted by Pamela V. Rothenberg, a member of Womble Carlyle's Real Estate Development group.)


Anonymous Charlie Edwards said...

This may be an opportunity for plaintiffs to explore the impact of the new ADA Amendments Act in public accommodation coverage. While the ADAAA focused on employment claims, the more expansive definition of “disability” and the elimination or limitation of defenses may well be used to argue that cases such as this one are not as prone to easy dismissal. Remember that while ADA employment cases must first be presented to the Equal Employment Opportunity Commission (or a counterpart agency at the state or local level), there is no requirement for a charge, a demand, or even notice before suit can be filed. Watch for plaintiffs’ attorneys and special interest groups to launch a round of test cases in jurisdictions which they view as friendly to their efforts.

In this regard, it would be prudent to examine state and local laws and regulations which impact on such a policy; drafting your own version without guidance might produce additional issues.

-Charlie Edwards, Womble Carlyle, Labor and Employment Group

1:58 PM  

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