Today , Where There ' S Smoke

Today , Where There ' s Smoke , There ' s a Neighbor ' s Lawsuit By Erin White

07/13/1998 The Wall Street Journal Page B1 (Copyright (c) 1998, Dow Jones & Company, Inc.) In New York, a prominent law firm is suing an investment-advisory firm. In Houston, a nursing service is suing its office landlord. In California, neighbors are suing neighbors. The common ground: secondhand smoke wafting through walls. It is a flourishing new wave of tobacco litigation, and far more simple than the epic battles over cigarette makers' liability. "All you have to do is prove it's a nuisance and it's an irritation," says John Banzhaf, executive director of the Washington, D.C., antismoking group Action on Smoking and Health. He compares these cases to suing over a neighbor's smelly cabbage. "You don't have to prove it's a health risk, you just have to say, `I shouldn't have to live with this stink.'" An added benefit is that plaintiffs avoid battling Big Tobacco, which typically spends more on legal defense than landlords or neighbors do. "They're not having to confront a multibillion-dollar company with a phalanx of lawyers. . . . It's a much more level playing field," says Edward Sweda, senior attorney at the Tobacco Control Resource Center, a Boston antismoking group. Mr. Sweda argued what he says was the first such case, which involved a Massachusetts man who sued his downstairs neighbor in 1991. The neighbor's smoking made the plaintiff's apartment feel "like living in a barroom," he said. He lost, though Mr. Sweda claimed a moral victory for trailblazing. Since then, the argument has made gains. In 1992, an Oregon nonsmoker prevailed in a suit alleging that a neighbor's smoking bothered her. Her landlord was ordered to reduce her rent. In 1994, an Ohio appellate court ruled that secondhand smoke could be considered a breach of a lease's implied guarantee of the right to "quiet enjoyment" of a property. And just last month, a Boston housing court awarded $4,350 to a couple whose landlord failed to keep smoke from a street-level nightclub from wafting upstairs. A new dispute is unfolding inside the General Motors Building overlooking Manhattan's Fifth Avenue and Central Park. In June the Weil, Gotshal & Manges law firm, whose offices include the 29th floor, sued investment-advisory firm Cambridge Capital Holdings, on the 28th floor. The suit, filed in state court in Manhattan, alleges that the stench from cigars, cigarettes and pipes seeps up to the 29th floor. Weil Gotshal employees have installed filters and air fresheners to no avail, the complaint states, and some have had to leave their offices. The suit seeks an injunction barring Cambridge from continuing to annoy Weil Gotshal and unspecified damages. Cambridge and the building's owner, Corporate Property Investors of New York, haven't responded to the complaint yet. Patrick Brennan, director of leasing at Corporate Property Investors, acknowledges that cigar smoke is a problem, but a common one in New York. Weil Gotshal attorneys say they are trying to settle out of court. The GM Building isn't smoke-free, but the city restricts workplace smoking to one room on each floor of a business, except in private offices. (New York developer Donald Trump and Conseco Inc., a Carmel, Ind., insurance company, have agreed to buy the building.) In state court in Houston, Kathleen Thomas, who runs a nurse-for-hire service, is suing the landlord and property manager of her office building for letting other tenants smoke. She says she is allergic to tobacco smoke and claims other tenants' smoking gave her such terrible migraines she missed two or three days a week of work for a year. She says the lease obligated the defendants to make the building smoke-free, which they deny. The lease promised Ms. Thomas smoke-free common spaces and smoke-free access to her offices. It also banned workmen from smoking in, on, or near Ms. Thomas's space. The problem is that Ms. Thomas signed the lease with her previous landlord, not the one named in the suit. Ms. Thomas says Kuykendahl Joint Inc., which bought the building in 1992, inherited her prior landlord's obligations; Kuykendahl says it didn't. In an interview, Ms. Thomas says her headache pain was once so bad she searched her home for something to drill a hole in her head, hoping it would relieve the pressure. A migraine "makes you irrational and stupid," she says. In one of the California secondhand-smoke cases, a woman is suing her neighbor and her condominium's homeowners' association in state court in Pasadena, Calif. She claims that her neighbor's smoking not only bothers her but actually killed her dog -- she says the dog died of bronchitis because of it, according to her attorney, Robb Strom of Los Angeles. The defendants haven't answered her complaint yet, he says. And in state court in Los Angeles, Roy Platt is suing his former downstairs neighbors because he couldn't stand the smell of smoke coming up through his windows and stairwell. "The entire stairwell would fill up with smoke and I couldn't get down the stairway," says Mr. Platt. The argument hasn't won everybody over. "Many people still have the attitude that a man's home is his castle, and you can't tell him what to do in his own home," Mr. Banzhaf says. And some attorneys say juries will view complaints that don't prove medical problems as nothing but whining from overly sensitive neighbors. But plaintiffs' advocates say public opinion, scientific research and the Environmental Protection Agency's 1992 designation of secondhand smoke as a known human carcinogen are tipping the scales. And landlords are responding. To help lessen the risk of liability, the Building Owners and Managers Association International, a trade association for 16,000 office landlords and owners, has been advising its members to ban smoking whenever possible, partly as a way to limit liability. Two years ago, 68% of office buildings surveyed by the group banned smoking. Now, that number is closer to 80%, the group says. And almost all members have banished smokers from common areas.