Our nation’s courts are mindful that private nuisance is only actionable if an interference with use and enjoyment of land is both “substantial and unreasonable.” Courts are cognizant that lots of people, who sometimes speak too loudly, smell badly or otherwise do not show proper regard for their neighbors, are thrown together in close proximity, particularly in urban settings, To permit these petty annoyances to be actionable as private nuisance would result in flooding our court system with trivial and nonsensical disputes.
It was with this consideration no doubt in mind that the Court of Special Appeals of Maryland, in David S. Schuman v. Greenbelt Homes, No. 2020 (September Term, 2011), affirmed on June 27, 2013, a Maryland trial court decision, which had concluded that a townhouse resident could not recover in private nuisance for the annoyance caused by secondhand smoke from a neighbor smoking on his back porch.
You have to love an appeals court decision, which captured the flavor of the matter by opening with the lyrics of an old hit song:
"A Mills Brothers hit from the 1930's asks the musical question:
Where do they go,
The smoke rings I blow each night?
Oh, what do they do,
Those circles of blue and white?"
After a six day trial, the Maryland trial court determined that the neighbor, who enjoyed four to six cigarettes on his back porch every evening was not a nuisance. Although the smoking created an odor, the claimant stressed potential adverse health impacts caused by secondhand smoke. Therefore, it was surprising that the plaintiff failed to produce any medical records showing an actual injury resulting from the smoke. Yet lack of medical proof was not the determinative finding in the court’s ruling.
As is often the case with these disputes between long time neighbors (who lived in adjoining townhomes in a housing cooperative in Greenbelt, Maryland), friction first arose fifteen years prior to the trial. At that time, the plaintiff claimed that the neighbor’s cigarette smoke was seeping into his home through cracks in the walls. In response to this complaint, the coop attempted to mitigate plaintiff’s exposure to the cigarette smoke by sealing the walls.
The sealed walls apparently did the trick until 2008 when the plaintiff renovated his home. In addition to the seepage issue reappearing, the neighbor now complained that he was bothered by secondhand smoke from his neighbors smoking on their back patio. As a result, smoke came into his home when the windows were open.
In rejecting plaintiff’s nuisance claim, the appeals court held “If this Court were to hold that any amount of secondhand smoke entering from one cooperative housing member’s home to another’s constituted a nuisance, we would be one step away from banning smoking in all private homes,” Judge Robert A. Zarnoch said, writing for a four-judge panel. The appeals court also affirmed that the small amount of smoke involved did not amount to a nuisance in fact under Maryland law.
In so holding, the court determined that its ruling was consistent with the approach taken by other courts. In particular, it cited in a New York Appellate Division case, Ewen v. Maccherone, 927 N.Y.2d 274, which determined that “the law of private nuisance would be stretched beyond its breaking point if we were to allow a means of recovering damages when a neighbor merely smokes inside his or her own apartment in a multiple dwelling building.”
As framed by the New York State Court of Appeals in Copart Indus. v. Con. Edison Co., 41 N.Y.2d 564, 394 N.Y.S.2d 169 (1977), one of the leading private nuisance cases in New York, a plaintiff seeking to establish a private nuisance must demonstrate the invasion of the interest in the private use and enjoyment of land is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangers conditions or activities.
In essence, the appeals court advised the plaintiff to get over it. “In this case, if Schuman does not want to be harmed by or to smell smoke, the only inconveniences he has are that he cannot sit on his porch to up to an hour and a half each evening and has to shut his windows at that time.” The court also recognized that merely because a claimant has a particular sensitivity to the smell of smoke that sensitivity cannot be the basis for a nuisance finding.
Rather, courts examine nuisance claims brought by “sensitive” individuals, such as Schuman, by applying an objective standard, i.e. whether the smoke would cause physical discomfort and annoyance in persons of ordinary sensibilities. It is noteworthy that plaintiff’s expert, James L. Repace, determined that the nicotine levels in the air at the courthouse – where smoking was prohibited – was similar to air readings taken at plaintiff’s house.
As the New York Court of Appeals wrote over forty years ago, “Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other. If one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life.” Nussbaum v. Lacopo, 7 N.Y.3d 311, 315, 265 N.E.762, 317 N.Y.S.2d 347 (1970).
During the pendency of the appeal, the case garnered considerable attention. The Tobacco Control Legal Consortium of the Public Health Law Center filed an amicus brief on behalf of plaintiff arguing that exposure to secondhand smoke poses a severe and immediate health risk, not a mere annoyance. Despite a strong appeal to the science in the amici brief, the Maryland appeals court did not take the bait.
Private nuisance cases can be troublesome to defend if the plaintiff is one of many who finds the defendant's conduct a nuisance. If several unit owners at the Greenbelt Coop found defendant's smoking problematic, the case would have been that much more difficult to defend.
In the absence of third-party corroboration of the nuisance, defense counsel in these cases should stress the absence of objective evidence of the nuisance, such as in Schuman, where the plaintiff's complaints were not associated with any medical complaints. The objective evidence Schuman did possess--air testing--was determined to be unpersuasive after it was determined that nicotine levels found in plaintiff's home were no higher than background levels.
Where the defendant has objective data--such as VOCs readings from a Draeger cannister in petroleum odor nuisance case--and the plaintiff does not have an expert who has performed testing to document plaintiff's claims, it may be possible in some jurisdictions to seek dismissal as a matter of law.
In what may be some small measure of consolation to the losing plaintiff, since this litigation commenced, the Coop has initiated a procedure pursuant to which coop owners along a row of units can now voluntarily revise their Mutual Ownership Contracts to indicate that smoking in these units is not permitted.