A property owner may breach the duty to maintain its premises in a reasonably safe condition by failing to restrict smoking in outdoor public areas, a California appeals court has held in a first-of-its-kind ruling.

The 2nd District Court of Appeal expanded the scope of public nuisance law in a case brought by a 7-year-old girl who claims her asthma and allergies were aggravated by exposure to secondhand smoke while she was living at an apartment complex in Woodland Hills.

Melinda Birke sued the owners of the Oakwood Apartments in June 2006, alleging they “allowed, encouraged and approved a toxic, noxious, hazardous, offensive –- and in fact carcinogenic -– condition to be present in all of the outdoor common areas of the complex” including near the swimming pool and playgrounds.

Smoking is prohibited in enclosed areas of the complex, but the owners declined the requests of Melinda's father Johnny Birke, an attorney, to ban outdoor smoking.

Los Angeles County Superior Court Judge Richard B. Wolfe dismissed the case for failure to state a claim. In finding that outdoor smoking is not a nuisance, he noted that the law has not traditionally prevented people from smoking in public.

But the 2nd District reversed Wolfe in a Jan. 12 opinion, finding that “Whether or not her claims can survive a properly supported summary judgment motion, let alone prevail following a trial, this court believes Melinda Birke has pleaded a cause of action for public nuisance sufficient to withstand a demurrer.”

The issue presented by the case, Justice Fred Woods wrote for the court,

is not whether Oakwood has a duty to ban smoking, “an otherwise legal activity in Woodland Hills,” but whether, given its indisputable duty to take reasonable steps to maintain its premises in a reasonably safe condition, its failure to impose any type of limitation on smoking in common areas, including swimming pools and the children’s playground that Melinda Birke has a right to use and enjoy, breached that duty. That question is not properly determined on a demurrer.

Johnny Birke said the decision is the first in which a U.S. court “has ruled that outdoor secondhand smoke can constitute a public and private nuisance.”

By Matthew Heller
1/19/09