Professor Bainbridge...on law, politics, religion, culture & food

Smoking, Apartments, and Nuisance Law

In the close confines of an apartment building, should one tenant be able to stop another from smoking if the smoke drifts into common areas or another apartment? In New York, such a case is pending:

Offices and restaurants have become no-smoking zones in New York City. But Galila Huff, a chain-smoking restaurateur from the Upper West Side, always thought that when it came to smoking, her apartment was her sanctuary.

But perhaps it is no longer.

Her neighbors, Jonathan Selbin, a class-action lawyer who has honed his skills suing major corporations, and his wife, Jenny Selbin, also a lawyer, are irate over the cigarette smoke that they say seeps from Ms. Huff’s apartment into the common hallway of their building, the elegant Beaux-Arts Ansonia, on Broadway between 73rd and 74th Streets.

(HT: Olson)

Granted, Selbin comes off as a real jerk. Also, there is a strongly worded precedent from Alaska that is directly contrary to his legal argument:

Daniel DeNardo sued his landlord and his neighboring tenant [one Corneloup] alleging that cigarette smoke emanating from the neighbor’s apartment was making DeNardo ill. ...

We affirm. There was no error in dismissing DeNardo’s claims of negligence and breach of the covenant of habitability after he voluntarily moved for dismissal of those claims and failed to preserve them in the superior court. There was no error in rejecting his claim that the landlord breached the covenant of quiet enjoyment, because there was no evidence the landlord substantially disturbed his use of the land. There was no error in rejecting his battery claim, because there was no contention that either defendant deliberately caused smoke to contact him. There was no error in rejecting his trespass and nuisance claims, because the arguments DeNardo makes here for imposing a duty on the tenant to refrain from smoking are unpersuasive, because he has not established that the landlord should be liable in trespass for tenant conduct it cannot control, and because he has not established that cigarette smoking by a tenant is ultrahazardous activity. We also affirm the grant of summary judgment on DeNardo’s claim of retaliatory eviction, because we conclude that he has not established that his failure to pay his rent in full was excused. He was therefore “in default in rent” per AS 34.03.310(c)(1) and ineligible to claim retaliatory eviction. ...

DeNardo next advances related theories of negligent trespass and nuisance against Corneloup and the Foreman’s Properties. Because a landlord cannot be liable for trespass based on actions of a tenant over whom the landlord has no control, DeNardo’s trespass claim against the Foreman’s Properties fails.

Corneloup did not commit negligent trespass or create a nuisance unless he violated a duty of care. The superior court ruled that “one tenant in an apartment does not owe a duty to another tenant to refrain from cigarette smoking.” Whether there is a duty of care is a legal question which we review de novo.

One state has enacted a statute declaring that smoke passing between residences is a nuisance, but there is no corresponding Alaska statute or Anchorage ordinance and there is no recognized common law obligation in Alaska to ensure that one’s cigarette smoke does not drift into other residences. DeNardo does not cite, nor have we found, any American precedent holding that one tenant owes other tenants a duty to refrain from smoking absent either a provision in the rental agreement or a statute or municipal ordinance prohibiting smoking or declaring smoke a nuisance in a multi-party residence.  DeNardo v. Corneloup, 163 P.3d 956 (Alaska 2007) (emphasis supplied)

No American precedent! So if smoke drifting into your apartment from a neighbor’s apartment is not a nuisance, it necessarily follows that smoke drifting into a common area also should not be an actionable nuisance.

But why not (and I say that as an unrepentant cigar smoker)?

If I build an incinerator on my property and the smoke drifts on to yours to a sufficient extent as to impair your quiet enjoyment of your property, a nuisance action would lie. Odors also may constitute a private nuisance. See, e.g., Jordan v. Georgia Power Co., 219 Ga. App. 690, 466 S.E.2d 601 (1995); Guzman v. Des Moines Hotel Partners, Ltd. Partnership., 489 N.W.2d 7 (Iowa 1992); Exxon Corp. v. Yarema, 69 Md. App. 124, 516 A.2d 990 (1986); Lever v. Wilder Mobile Homes, Inc., 283 S.C. 452, 322 S.E.2d 692 (Ct. App. 1984); Manchester Terminal Corp. v. Texas TX TX Marine Transp., Inc., 781 S.W.2d 646 (Tex. App. Houston 1st Dist. 1989), writ denied, (Nov. 7, 1990); Martin v. Moore, 263 Va. 640, 561 S.E.2d 672 (2002); Wendinger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. Ct. App. 2003), review denied, (Aug. 5, 2003).

So why not cigarette smoke? We read in 26 Causes of Action 2d 277 (2007) that:

The test as to whether a particular use of real property constitutes a private nuisance generally is the reasonableness or unreasonableness of the use under the circumstances.  The determination also turns on whether there is an appreciable, substantial, tangible injury resulting in actual, material, and physical discomfort to the plaintiff. Thus, a prima facie case for private nuisance based on emanations of noise, odor, or light from a neighboring property requires a showing that such emanations unreasonably interfered with the plaintiff’s enjoyment or use of his or her property and that the plaintiff sustained material and substantial harm as a result of the nuisance.

Cigarette smoke certainly could be deemed to interfere with one’s enjoyment of one’s property, so the question is whether “ the plaintiff sustained material and substantial harm as a result of the nuisance.” The Alaska supreme court said no. Despite concerns about second hand smoke, the court may have been right. We learn from COA that:

The injury required to support an action for private nuisance must be substantial. Interference with use or property that is not substantial does not give rise to an action for damages against the person causing it.

The harm must involve more than a slight inconvenience or petty annoyance. Relevant factors in determining whether the harm reaches the level of nuisance include the character of the neighborhood, the degree of intrusion, and the effect of the activity on the health and safety of the neighbors. ... Actual physical discomfort may be required. ...

Whether the injuries claimed in a particular private nuisance action are substantial depends on the particular facts in light of the effect the complained-of activity would have on a person of ordinary sensibilities. Thus, the act complained of as a nuisance must be such that it would affect an ordinary, reasonable person and must not be fanciful or such as would affect a person of fastidious taste.

Is Selbin merely being fastidious?