Fox Point Apt. v. Kippes, No. 92-6924,(Lackamas County (OR) Dist. Ct. 1992). The landlord moved a known smoker into the apartment below a nonsmoking tenant who began to suffer nausea, swollen membranes and respiratory problems as the cigarette smoke entered her apartment. The tenant sued the landlord, alleging that the landlord had breached its statutory duty to keep the premises habitable and the covenant of peaceful enjoyment which the common law implied in every rental agreement. The jury unanimously found a breach of habitability, reduced the plaintiff's rent by 50 percent and awarded the tenant medical costs.
Donath v. Dadah, et al., No. 91-CV179 (Worcester Cty., MA, Housing Court Dept. 1991). A tenant sued her landlord for nuisance, breach of warranty of habitability, breach of the covenant of quiet enjoyment, negligence, battery and intentional infliction of emotional distress due to exposure to secondhand tobacco smoke in her home emanating from the second floor apartment of the defendants. The plaintiff alleged that she had suffered asthma attacks, labored breathing, wheezing, prolonged coughing bouts, clogged sinuses and frequent vomiting due to the exposure to secondhand smoke in her home. The case was settled for an undisclosed sum of money. She moved out of the apartment shortly after filing the lawsuit.
Dworkin v. Paley, 638 N.E.2d 636,93 Ohio App. 3d 383, (Ohio App. 8 Dist. 1994). A nonsmoking tenant, Mr. Dworkin, entered into a one-year lease with the landlord, Ms. Paley, to reside in a two-family dwelling. The lease was later renewed for an additional one-year term. During the second year, Paley, a smoker, moved into the dwelling unit below Dworkin's. Two weeks later, Dworkin informed Paley in writing that her smoking was annoying him and causing physical discomfort. Dworkin noted that the smoke came through the common heating and cooling systems shared by the two units. Within one month, Dworkin vacated the premises. Eight months later, he filed a lawsuit to terminate the lease and recover his security deposit from Paley. The legal action, alleging that Paley had breached the covenant of quiet enjoyment and the statutory duties imposed on landlords (including doing "whatever is reasonably necessary to put and keep the premises in a fit and habitable condition") was dismissed on a motion for summary judgment. The court of appeals reversed the dismissal, concluding that exposure to secondhand tobacco smoke could constitute a breach of the covenant of quiet enjoyment. The appellate court remanded the case for further proceedings, finding that a review of the affidavits presented "the existence of general issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant's rental unit."
Pentony v. Conrad et al., NJ Super. Ct. (1994). The plaintiffs sought an injunction preventing their downstairs neighbors from smoking between 4:00 P.M. and 9:00 A.M. (when the Pentonys would be home from work) in their apartment because the secondhand smoke seeped throughout the Pentonys' apartment. After a two-hour hearing, the judge ordered the apartment complex directors to try to resolve the dispute out of court. The neighbors settled their dispute, but the terms of the settlement remain confidential. See "Neighbors Settle Smoking Dispute," The Record (Bergen County, NJ), March 2,1995,C12; "2 Smokers Are Sued by Neighbors in Apartment Above Them," New York Times, April 28,1994,B6; "US Couple Sue Downstairs Neighbors for Smoking, The Times, April 29,1994; Gold, J., "Judge Rejects Bid to Stop Neighbors Smoking," The Record (Bergen County, NJ) S06; Hanley, R., "Judge Turns Down Couple in Quest of Anti-Smoking Order Against Their Neighbors," New York Times, April 29,1994,B5; "Couple Whose Neighbors Smoke Sent to Co-op Board," Orlando Sentinel, April 30,1994,A18; "Judge: Neighbors' Smoking Dispute Must be Resolved by Board," The Legal Intelligencer, May 2,1994,8; "Complex Orders Repairs in Fight Over Smoking," The Record (Bergen Counting),May 13,1994,A27; "Truce Is Reached in a Co-op Clash Over Smoking," May 13,1994,B4; Boronson, W., "Love Thy Neighbor: Different Ways to Cope with the Nuisance Next Door," The Record (Bergen County, NJ),May 15,1994,R1; and "Upstairs, Up in Smoke," National Law Journal, May 23,1994,A23.
Snow v. Gilbert, Middlesex City. (MA) Superior Ct., Docket No. MICV94-07373 (1994). A woman suffering from multiple chemical sensitivity, pulmonary fibrosis and CREST, a form of scleroderma, won a temporary injunction against her landlord to prevent him from renting the units below hers to smokers, at least until she succeeded in finding another apartment elsewhere. The landlord was found to have violated an earlier agreement not to rent the units to smokers. The smoke emanating from the units rented to smokers consequently seeped into the plaintiff's apartment, causing a severe reaction.
Layon et al. v. Jolley, et al., Case No. NS004483, Superior Ct. of Calif., Los Angeles County (1996). The plaintiffs sought an injunction prohibiting harassment. According to the complaint, the plaintiffs' condominium sat above a garage where the defendants smoked marijuana, cigarettes and cigars. The exposure to secondhand smoke had forced the plaintiffs "to evacuate our own home for hours every time the defendant goes in his garage to smoke." The court issued a restraining order, specifying, "Defendant must stay away from his garage while smoking." See Russell, K., "Court Clears the Air," Press-Telegram, April 26,1996.
In re U.S. Department of Housing and Urban Development (HUD) and Kirk and Guilford Management Corp. and Park Towers Apartments, HUD Case No. 05-97-0010-8,504 Case No. 05-97-11-0005-370 (1998). Two complaints were filed in September 1996 by Nancy V. Kirk under Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act of 1968 against Guilford Management Corp. and Park Tower Apartments. Ms. Kirk claimed that she had a respiratory condition that was aggravated by exposure to her neighbors' secondhand tobacco smoke, which seeped into her apartment at Park Tower, a HUD-subsidized high-rise for the elderly and the disabled. The parties entered into a conciliation agreement, which was approved by HUD. The agreement provided that Park Tower would go smoke-free, beginning with new tenants only, who moved in on or after March 15,1998. Smokers could move in, but only if they agreed to comply with the no-smoking policy. Violators of the no-smoking policy would be subject to written warnings and eventually to eviction. Since the transition to a smoke-free building would take many years, Park Tower agreed to inquire of several tenants currently residing in an area of the building having fewer smokers as to their willingness to be relocated elsewhere in the building, thus making available an apartment for Kirk to move to a less smoke-filled area.
50-58 Gainsborough St. Realty Trust v. Haile, et al., 13.4 TPLR 2.302,No. 98-02279,Boston Housing Court (1998). A nonsmoker who lived with her husband in an apartment directly above a smoky bar was sued by her landlord for failure to pay rent. The tenant had withheld the rent, alleging that the smoke seeping into her apartment deprived her of the quiet enjoyment of that apartment. A Housing Court judge ruled that the amount of smoke from the bar below had made the apartment "unfit for smokers and nonsmokers alike." The judge found that "the evidence does demonstrate to the Court the tenants' right to quiet enjoyment was interfered with because of the second-hand smoke that was emanating from the nightclub below." The judge awarded the tenants $4,350. See Estes, A., "Tenant Wins Suit over Smoky Home," Boston Herald, June 10,1998,1,4; and "Judge: Landlord Must Stop Secondhand Smoke," The Recorder (Greenfield, MA), June 11,1998,9.
Weil, Gotshal & Manges LLP v. Longstreet Associates, L.P., et al., 13.4 TPLR 3.188,Supreme Court of the State of New York (1998). A large law firm in a New York City office building filed suit against the landlord and a tenant located one floor below its offices. The law firm alleged that the secondhand smoke emanating from the floor below had caused some of the firm's partners, associates and employees "illness, discomfort, irritation and endangerment to their health and safety" and prevented some of their personnel from being able to use or occupy their offices. The firm alleged that the landlord breached its contract and constructively evicted the plaintiff and further alleged that both defendants permitted a nuisance, engaged in trespass and were negligent. The law firm later dropped the suit because the owner and the tenant agreed to remedy the smoke problem voluntarily. See Gregorian, D., "Law Firm Smokin' Mad at Neighbors," New York Post, June 23,1998 22; and Arena, S., "Lawsuit Raises Stink Over Cigar Smoking," Daily News (New York), June 23,1998,17. See "Law Firms Drops Smoking Lawsuit," Crain's New York Business, September 14,1998,1.
Lipsman v. McPherson, 19 M.L.W. 1605 No. 90-1918, (Middlesex, MA, Superior Court 1991). A nonsmoking tenant sued a smoking tenant of an apartment in the same building, alleging nuisance and negligence because the smoke from the defendant's apartment regularly seeped into the plaintiff's apartment, causing him annoyance, discomfort and increasing his risk of physical harm due to exposure to secondhand tobacco smoke and of fire. The defendant filed a motion to dismiss. The court dismissed the claims for negligence and risk of fire, but allowed the claim of private nuisance to be heard. The defendant won at trial before a judge without a jury. The court ruled that the "annoyance" of smoke from three to six cigarettes per day was "not substantial and would not affect an ordinary person." It also held that the "plaintiff may be particularly sensitive to smoke, but an injury to one who has specially sensitive characteristics does not constitute a nuisance." Shortly after this decision, the Defendant moved out.
