In a recent California appellate court case, Birke v. Oakwood Worldwide, 09 C.D.O.S. 409 (2009), the court validated a public nuisance cause of action arising out of an apartment owner’s failure to limit secondhand smoke in outdoor common areas. The court reversed the trial court’s ruling sustaining the apartment owner’s demurrer to the resident’s first amended complaint. Without commenting on the merits of the allegations or the potential difficulties in proof, the court found the facts as pled by the resident were sufficient to withstand a demurrer and state a valid cause of action.  

The Facts  

Oakwood owns and operates an apartment complex in which Birke (a five-year-old girl) and her parents reside. Oakwood prohibits smoking in all indoor apartment units and indoor common areas but allows smoking in the barbeque areas, pool areas, playground areas and other outdoor common areas where it provides ashtrays and permits its employees to smoke. Oakwood is also alleged to have made a business decision not to restrict smoking to facilitate marketing of the apartments to international tenants. Further, Oakwood declined Birke’s repeated requests that smoking be banned from the outdoor common areas. Birke, an asthma patient, suffered allergic reactions and three bouts of pneumonia as a result of her exposure to the secondhand smoke.  

The Nuisance Allegations  

The court, in its distillation of applicable statutes and case law opined that in order to adequately plead a cause of action for public nuisance based on secondhand smoke in an apartment’s common areas, it is necessary to allege the following: (i) the apartment was operated and managed in a way that, by act or omission, created a condition harmful to health, or obstructed the free use of the common areas, so as to impede the comfortable enjoyment of life or property; (ii) the condition impacted a substantial number of people concurrently; (iii) an ordinary person would be reasonably annoyed or disturbed by the condition; (iv) the seriousness of the harm outweighs the social utility of the conduct; (v) the condition was non-consensual; (vi) the harm suffered was different from the type of harm suffered by the general public; and (vii) the objectionable conduct was a substantial factor in causing the alleged harm.  

The court found that each of the required elements of the cause of action had been adequately pled. In particular, the court held that the aggravation of Birke’s allergies and chronic asthma was different in type from the harm to the general public of increased risk of developing heart and lung cancer. The court also suggested that where the injury is a private nuisance as well as a public nuisance, the special injury requirement is inapplicable. The court further found that Oakwood’s alleged conduct in permitting the smoking in the common areas, providing ashtrays, and refusing Birke’s request to ban smoking was sufficient to support the nuisance claim.  

The Potential Impact  

As a result of the court’s decision, the case now goes back to the trial court for a determination on its merits. The cost of prosecuting and defending the action will be substantial as the various factual and medical issues will be complex and contested.

The opinion provides a roadmap to other potential plaintiffs and their counsel as to how to successfully plead the public nuisance cause of action so as to survive demurrer. Numerous actions are likely to be filed against apartment owners and managers based upon similar allegations. Apartment owners and managers, however, are not the only potential targets of this new wave of litigation. The same allegations can be made with respect to office buildings, shopping centers, resort property and virtually any other real property occupied regularly or for extended periods.  

Owners of all property types are advised to carefully consider the nature and scope of their smoking/secondhand smoke regulations and policies to minimize the risk of potential secondhand smoke claims and the resultant litigation