Here's an interesting court case in our town pertaining to second-hand smoking. The $15,500 rewarded to the plaintiffs is nominal at best, but it's instrumental for landlords voluntarily changing their complexes into
non-smoking zones.
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Condo owners win secondhand smoke case
By Marilyn Kalfus | Orange County Register | March 13, 2013
An Orange County jury has found a homeowners association negligent for failing to resolve a secondhand smoke dispute between neighbors at a Trabuco Canyon condominium.
After a five-week trial, Superior Court jurors last week awarded a family more than $15,000, finding the condo association and management failed to ensure the non-smoking family’s right to the “quiet enjoyment” of their own unit.
The verdict comes amid a growing trend in California. Non-smokers are complaining to homeowners associations, filing lawsuits and appealing to city councils to try to stop tobacco smoke from infiltrating their apartments and condominiums. A bill is pending in the state Legislature that would ban smoking in multiunit residences.
Kim and Kai Chauncey filed their lawsuit in March 2011 against the Bella Palermo Homeowner Association in Trabuco Canyon and TSG Independent Management. The defendants included Lauren and Richard Lee Pulido, identified as tenants of the condo next door.
The Chaunceys alleged that the neighbors and their visitors smoked “incessantly” on their patio next to the family’s condo and adjoining sidewalks in front of their home, with the “constant infiltration and presence of secondhand smoke” entering their condo through windows and a sliding-glass door. The Chaunceys said the smoke aggravated their young son’s asthma.
They said that despite their repeated complaints, the homeowners association, the management company, the tenants and the condo owner did not stop the problem. The Chaunceys’ lawyer, Scott Bonesteel, said in an interview that because of the smoke, the family had to move out of its condo and rent a unit elsewhere.
Bonesteel said the jury found that the homeowners association and management company were liable for breach of contract and negligence. The homeowners association’s rules did not address secondhand smoke, he said, but “we basically said what you’re doing, though it is not specifically called out in the CC & Rs, is in fact a breach.”
The association’s rules state, in part: “Section 9.03 – Nuisance. No noxious or offensive trade or activity shall be permitted upon any part of the covered property, nor shall anything be done thereon which shall in any way interfere with the quiet enjoyment of each of the owners of his respective residence.”
Bonesteel asked the jury to award the Chauncey family $120,000. Jurors came back with an award of $15,500. Of that, $6,000 was for economic damages and $9,500 for emotional distress. The jury found the homeowners association to be 60 percent responsible for the emotional distress damages, Bonesteel said, while the management company, the owner and the tenants were held liable to lesser degrees.
The lawsuit cited an Orange County municipal ordinance that states, in part, “The Environmental Protection Agency has concluded that secondhand tobacco smoke is a human carcinogen and responsible for over 3,000 lung cancer deaths in non-smoking adults each year.” The California Air Resources Board also identified secondhand smoke as a “toxic air contaminant,” the suit said.
http://www.ocregister.com/2013/03/13/condo-owners-win-secondhand-smoke-case/