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What Legal Options Are Available For Suing A Neighbor For Secondhand Smoke?

by Barry Webb

The dangers of smoking are well known and, according to the Center for Disease Control, secondhand smoke can be just as bad for nonsmokers. If cigarette smoke from your neighbor's home keeps drifting into your house and you've tried to work out a solution with the person to no avail, you may feel your only option is to take the individual to court to obtain a resolution. The trouble is, there aren't any statutes that specifically address this particular issue since the person isn't actually smoking in your home. However, here is one indirect way you may be able to obtain compensation for damages to your home and health because of your neighbor's smoking.

Private Nuisance

You can try recovering damages caused by secondhand smoke by suing under private nuisance laws. A private nuisance is defined as anything that interferes with an individual's use and enjoyment of his or her residence and land. For instance, a dog that consistently barks at 3 am could be seen as a private nuisance because the noise prevents the people in neighboring homes from enjoying their houses peacefully.

Private nuisance laws cover a wide range of issues, including foul odors, noxious gases, and smoke. To win a case against your neighbor for secondhand smoke, you must prove the smoke is entering your home from your neighbor's house or actions (e.g. smoking on the balcony next to your apartment) and that it is substantial and continuous (e.g. the person smokes a pack a day in that area). Lastly, you would have to prove the smoke is adversely affecting your enjoyment of your home (e.g. the smell gives you headaches, forcing you to sleep somewhere else).

Depending on the circumstances of the case, the court may only provide injunctive relief at first rather than monetary damages by ordering the defendant to stop his or her actions. If the defendant violates the court ruling, the judge may then order the defendant to pay your damages.

Other Options

If you live in an apartment or condo, you may be able to collect damages from the landlord or condo association as well. This is generally only possible if the building has a no-smoking policy in place. If you complain to the landlord or manager about your neighbor's smoking and they do nothing about it, you may have a case for negligence.

You'll have to show the landlord or association had a duty to act, failed to take action, and that you were harmed as a result to win money for your damages and losses.

Whichever option you choose, suing for damages in a case like this can be challenging. Contact a personal injury lawyer for advice about or assistance with litigating a lawsuit.

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