If tobacco smoke drifts into your apartment from a neighboring unit, causing you illness or discomfort, you may wonder whether you can take legal action. Suing your neighbor or landlord is an option, but it should be your last resort. Lawsuits are time consuming, expensive, and contentious, and the outcome is always uncertain. In a lawsuit regarding drifting tobacco smoke in an apartment building, the result is especially unpredictable because very few cases, and no state laws, are directly relevant.

Before suing, you should try to reach an agreement with your neighbor to limit where and when s/he smokes. You also could ask your landlord or property manager to make certain areas of the building smokefree. In addition, you could work to pass a law in your community to address the problem of drifting smoke in multi-unit residences. If these approaches fail, you may even want to consider moving.

If you reach the point where a lawsuit seems to be your only option, this fact sheet outlines several things to consider.

Evaluating Your Case
To help you evaluate your potential lawsuit, ask yourself three questions: What harm have I suffered? Who is responsible? And what do I want to get out of a lawsuit?

What harm have I suffered?
As a general rule, it is unwise to file a lawsuit unless you have suffered significant harm. Your chance of convincing a court that you have a justifiable legal claim is far better if you can show that you have been harmed badly by repeated, unwanted exposure to secondhand smoke in your apartment —for instance, if you have visited a doctor with frequent respiratory complaints, missed work due to illness caused by the smoke, stayed away fromhome when you know your neighbor tends to smoke, or kept your windows closed in hot weather or your heater off in cold weather to prevent smoke from entering your unit.

Who is responsible?
Depending on your situation, it may be your neighbor and your landlord. Your neighbor could be responsible for harming you directly by smoking, and your landlord could be responsible for knowing about the drifting smoke and failing to do anything to protect you from it. So you may be able to sue both your landlord and your neighbor, or you may be able to sue only one or the other.

What do I want to get out of a lawsuit?
The goal of any lawsuit is to obtain a “remedy” that either stops or compensates for the harm. In a case involving secondhand smoke exposure in an apartment building, you would probably seek money from the person you sued (“money damages”) and/or an order from the court requiring the person you sued to do or stop doing something (an “injunction”). Money damages might help you cover moving costs, medical bills, or lost pay. An injunction might force your landlord to designate certain units smokefree or provide you with a different unit, or it might order your neighbor to smoke only at certain times or places. Before filing a lawsuit, consider what you are hoping for and whether it is worth a legal fight.

Possible Legal Claims
Depending on your circumstances, there are a variety of legal claims that might serve as the basis of your argument in court. Later in this fact sheet you will see why, if you take your case to small claims court, you do not need to learn the names or details of these legal claims. If you hire a lawyer to bring your case in trial court, your lawyer will evaluate which claims are best suited to your situation.

In California, very few cases apply directly to the problem of drifting tobacco smoke in an apartment building. Moreover, state law currently does not restrict smoking in apartments. Unless you live in one of the few cities in California that has specifically prohibited smoking in multi-unit housing or declared secondhand smoke to be a nuisance, your lawsuit would rest on broad legal claims that are not specifically designed to solve your situation.

Legal claims that might be brought against a neighbor include battery, harassment, intentional infliction of emotional distress, negligence, nuisance, and trespass.

At least two courts in California have been open to claims brought against a neighbor for harms caused by drifting tobacco smoke. In 1996, a Los Angeles couple sued their neighbor for harassment because he smoked on a regular basis in the garage under their unit, forcing them to leave their home for hours at a time. The trial court issued a restraining order instructing the neighbor to stay away from his garage while smoking. In 2004, a trial court in Riverside County ruled against a smoking neighbor. The court held that it is possible to win negligence and nuisance claims for exposure to drifting tobacco smoke if it is sufficiently extreme, constant, and noxious. Although these two cases suggest that courts in California might be sympathetic to apartment residents who suffer from a neighbor’s secondhand smoke, neither case is a “published” decision, which means that they cannot be used to support future lawsuits.

Legal claims that might be brought against a landlord include nuisance, constructive eviction, violation of the implied covenant of quiet enjoyment, negligence, and violation of the implied warranty of habitability.

In 2009 a California court held that a landlord who allowed smoking in outdoor common areas could be held liable for creating a public nuisance, after the family of a young girl with asthma sued the landlord based on nuisance and other claims. A California Court of Appeal ruled that secondhand smoke in the outdoor common areas of an apartment complex could in fact constitute a nuisance. The Court of Appeal sent the case back to the lower court for trial to determine whether the secondhand smoke in the outdoor areas of this particular complex is enough to constitute a legal nuisance.

Courts in other states have also held landlords liable for drifting smoke. In an Oregon case, a jury found that a landlord breached the warranty of habitability by moving a known smoker into an apartment below a nonsmoking tenant who was sensitive to secondhand smoke. The jury awarded the tenant a 50 percent rent reduction and damages to cover her medical bills. The housing court in Boston held that drifting cigarette smoke from a downstairs bar was a serious enough intrusion into a tenant’s apartment to violate both the warranty of habitability and the covenant of quiet enjoyment. The court awarded money damages to the tenant and ordered the landlord to fix the problem. In New York, a trial court ruled that secondhand smoke from a neighboring unit or common area can give rise to a breach of the warranty of habitability and a constructive eviction when the landlord fails to take any action to remedy the situation.

In addition to the case in California holding that drifting secondhand smoke in an apartment complex may constitute a nuisance, there are scientific findings that should help boost your case against your neighbor and/or landlord. The California Air Resources Board has added secondhand smoke to its list of toxic air contaminants, and the U.S. Surgeon General has declared there is no risk-free level of exposure to secondhand smoke. These findings, along with a vast amount of other evidence documenting the negative health effects of secondhand smoke, could help convince a court that you have suffered serious harm from repeated, unwanted exposure to drifting smoke in your apartment.

Trial Court or Small Claims Court?
If you decide that you want to file a lawsuit, there are two types of courts available to hear your case: regular trial court and small claims court. (Every trial court in the state must have a small claims court division that is designed to resolve minor civil disputes.) These two types of courts differ in at least three important ways.

Role of attorneys
In trial court, both sides generally hire lawyers to represent them. In small claims court, the parties must represent themselves. Note that California law requires small claims courts to provide advisory services to help the parties navigate the process from start to finish. In addition, helpful guides to using small claims court are available on the Internet.

Formality of proceedings
A trial court case is governed by elaborate rules about filing the case, presenting evidence, and so on. Small claims court actions are informal; they use a simple approach to conflict resolution enabling the judge to decide a case quickly, focusing on basic principles of fairness instead of legal technicalities. In order to file a small claims court case, an individual must be able to tell his or her side of the story but does not have to name the legal claims that apply to the case.

Available remedies
A trial court judge has the ability to award a wide range of remedies, including money damages and an injunction ordering the person being sued to do or stop doing something. A small claims court, however, may only hear cases involving $7,500 or less and cannot generally issue an outright injunction. A small claims court may instead issue a “conditional judgment,” which allows the person being sued to choose between taking a certain action or paying a fine. For example, a conditional judgment might instruct a tenant to either stop smoking on her patio or pay $5,000 to her neighbor.

Given these three essential differences between trial court and small claims court, one or the other may seem better suited to your case.

Trial court would be a good choice if you can find a lawyer willing to represent you who can make solid legal arguments about how some of the claims mentioned above apply to your case. If you win in trial court, you would not only benefit yourself, but you could also contribute to advancing the law by clarifying how certain general legal theories apply to drifting smoke in multi-unit housing.

You might choose to sue in small claims court if you cannot find a lawyer to represent you or if you want your case resolved quickly and efficiently. A small claims court judge will be less worried about the exact legal basis of your claim than about finding a fair solution to your problem. Given that there is barely any law in California addressing secondhand smoke in apartments, the focus on fairness over legal precision may end up working in your favor.

Conclusion If a lawsuit seems to be your only option, do not give up hope. Our society is gradually beginning to recognize the problem of drifting tobacco smoke in multi-unit housing—and so are the courts. California has joined an increasing number of states across the country where courts have found in favor of tenants who sued their neighbors or landlords over drifting secondhand smoke. Your case might contribute to this trend in California.

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