Landlords May Be Liable to Their Tenants for Failure to Limit Second Hand Smoke in the Outdoor Common Areas of a Residential Apartment Complex

In Birke v. Oakwood Worldwide, the California Court of Appeal, (2nd District) reversed the trial courtís sustaining of a demurrer without leave to amend on plaintiffís claim for public nuisance arising out of the failure of the landlord to limit second hand smoke in the outdoor common areas of a residential apartment building. The Court of Appeal held that the First Amended Complaint sufficiently plead a cause of action for public nuisance to withstand a demurrer.

In Birke, plaintiff, through her father and guardian ad litem, filed suit against defendant landlord alleging a nuisance cause of action arising out of the failure of the landlord to limit secondhand smoke in the outdoor common areas of a residential apartment building where the plaintiff resided. The plaintiff alleged that the effects of second hand smoke had led to three bouts of pneumonia, was a noxious, hazardous and offensive condition which would offend, annoy or disturb an ordinary reasonable person.

Although the landlord prohibited smoking in all indoor units and indoor common areas, it did allow smoking in the outdoor common areas to accommodate tenants and guests who smoke.

The trial court sustained the landlordís demurrer without leave to amend. The trial court found that there were insufficient facts pled to show that Oakwood created or assisted in creating the nuisance. The trial court also sustained the demurrer on the grounds that the plaintiff lacked standing to assert a public nuisance claim because asthma and allergic symptoms are not of a different kind of harm from the harm suffered from the general public, mainly heart disease and lung cancer.

The Court of Appeal reversed. The Court of Appeal held that in order for plaintiff to plead a cause of action for nuisance, she needed to allege that: (1) the landlord and the various related entities that manage and operate the apartment complex in Woodland Hills in which the plaintiff resided, by acting or failing to act, created a condition that was harmful to health or obstructed the free use of the common areas of the apartment complex, so as to interfere with the comfortable enjoyment of life or property; (2) the condition affected a substantial number of people at the same time; (3) an ordinary person would be reasonably annoyed or disturbed by the condition; (4) the seriousness of the harm outweighs the social utility of the landlordís conduct; (5) neither plaintiff nor her parents consented to the conduct; (6) plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) The landlord's conduct was a substantial factor in causing plaintiff's harm.

The Court of Appeal found that the First Amended Complaint sufficiently pled facts supporting the seven requirements above and stated a cause of action for public nuisance. In particular, the Court of Appeal found that the aggravation of plaintiffís childhood asthma and chronic allergies alleged in the First Amended Complaint was not at all similar to the increased risks of heart disease and lung cancer the general public (or that portion of the public who use Oakwood's outdoor common areas) face. Finally, the Court held that the First Amended Complaint sufficiently stated that the landlord participated in the creation of the nuisance by allowing smoking in the outdoor common areas.

Although this case only involves a plaintiff surviving the demurrer stage with respect to the cause of action for public nuisance, it is unclear whether landlords can or will be held liable for allowing smoking in outdoor common areas. Hamburg, Karic, Edwards & Martin LLP, will be closely monitoring this case and will update you with any new developments. If you have any questions or comments regarding your relationship with your tenants, please do not hesitate to contact our office.

Birke v. Oakwood Worldwide (2009 Second District, Division Seven.) Cal.App.2d


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