Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540, 87 Cal. Rptr. 3d 602 (Cal. App. 2009).
On January 12, 2009, in a ruling that concerns the rights of property owners and smokers alike, the California’s 2nd District Court of Appeal ruled that Melinda Burke, a 7-year old asthmatic, had standing to file suit as a tenant against her family’s apartment complex over second hand smoke in outdoor common areas.
While acknowledging that her claims may face significant challenges overcoming summary judgment, specifically the question of whether the company breached its duty to maintain premises in a safe condition, the Court of Appeal ruled that Melinda Birke demonstrated sufficient standing to withstand a demurrer.
The 2nd District found that Melinda had standing as the family member of a tenant within the apartment complex, and that her health problems of aggravation of her asthma and chronic allergies were not similar to the general public’s increased risk of heart disease and lung cancer from second hand smoke.
This ruling threatens to restrict further the rights of smokers and increase liability for property owners. In Birke, the smoking in this case occurred in outside common areas, and this ruling could prevent smokers from smoking in any place other than areas specifically designated for smokers, even in their own apartment complex. Moreover, it opens up property owners to liability for creating public nuisances by providing for cigarette disposal in common areas, and increases those members of the public to whom they owe a duty.
Adam T. Simons
Asimons@semmes.com