I heard that a court recently decided outdoor secondhand smoke can be considered a nuisance. What does this mean for tobacco control advocates?

For the first time in the United States, a California court ruled that an apartment tenant can sue a landlord for failing to restrict cigarette smoking outdoors because it may constitute a nuisance. In 2006, the family of five-year-old Melinda Birke sued the owners of the Southern California apartment building where she lives for creating a public nuisance by allowing smoking in its outdoor common areas. A trial court dismissed the claim, saying that secondhand smoke outdoors can never be a nuisance. The family appealed, and in January 2009 California’s Second District Court of Appeal reversed the decision.

While the Court of Appeal held that outdoor smoking can create a nuisance, it did not make a decision about Melinda’s particular situation. Instead, that determination is left for trial, where a jury will need to decide whether the secondhand smoke in this case is bad enough to constitute a nuisance. (It is possible that the case may settle before it goes to trial.)

As the first court ruling that outdoor secondhand smoke may constitute a nuisance, this decision sets an exciting precedent for courts deciding similar cases in the future; this ruling can be applied to settings other than apartments, such as condos or other outdoor places where smoking occurs near people’s homes. To limit potential legal liability in any future nuisance lawsuit, landlords and condo associations may want to consider banning or restricting smoking in common areas. The full text of the court decision in this case (Birke v. Oakwood Worldwide) is available.