second hand lawsuit smoke in small claim?

[CaliforniaBear]

What is the name of your state (only U.S. law)? CA

I live in a single-family house (not a HOA), and in summer tobacco smoke drifts from my neighbor's house into mine.

The US Surgeon General declared there is no safe level for 2nd hand tobacco smoke. I live in Temple City, which has an ordinance for 2nd hand tobacco smoke for public places and multi-family buildings, but not for single-family. The ordinance states that unwelcome 2nd hand smoke in a property is a nuisance and a trespass.

Therefore, even though there's no statute specifically addressing my situation, I guess it could be considered as either personal injury, nuisance or trespass or all of them.

I am thinking to file a lawsuit in small claims. Do you think it's applicable? Honestly, I only want this to stop, and I was thinking to file without asking for money but I researched the fact that I cannot do that, so I can either ask a nominal amount like $10, or just file the amount I think is fair.

If I am unsuccessful, I understand I cannot file in the superior court. But, could my wife then file in superior court, since she would not be named in the small claims case?

Thank you for your time.

 

[justalayman]

You can research to determine if there are statutory damages available for trespass or nuisance. If there is and the statute does not preclude it from being heard in small claims, those could be in small claims/



as to the personal injury; no. You would have to prove injuries. A statement that second hand smoke is unhealthy does not mean you have suffered any damages.

 

[tranquility]

Have a TON of money to front as making new law is expensive.. That is not to say this is where the law may head. It is just you are on the forefront. It won't be frivilious. Knock yourself out. But, have money to front.

 

[FarmerJ]

Im curious if you would want to try to take legal action if a neighbor was using charcoal in a barbeque outside , or say they had a fire pit/ outdoor fire place and enjoying a recreational fire one evening ? Id suggest you may have better luck lobbying your state reps to make your state the first one to totally ban all sales and use of tobacco products with in its borders ( not likely to happen since state governments haven't ever admitted who is going to pay to make up for the loss of tobacco taxes generated from sales should legal use of tobacco end)

 

[CaliforniaBear]

You can research to determine if there are statutory damages available for trespass or nuisance. If there is and the statute does not preclude it from being heard in small claims, those could be in small claims/



as to the personal injury; no. You would have to prove injuries. A statement that second hand smoke is unhealthy does not mean you have suffered any damages.

thanks. I could not find any statutory damages, but I did find several definitions of nuisance and how to help me prove it to the judge. I'm not saying you're wrong about personal injury, I just thought this: eating a burger is unhealthy, but tobacco smoke is carcinogenic and toxic, so merely inhaling it forcefully in your living room would be enough to prove injury, especially considering the relaxed rules of evidence in small claims. again, not saying this is right, just what I was thinking.

Im curious if you would want to try to take legal action if a neighbor was using charcoal in a barbeque outside

no because barbeque smell might be annoying or not, depending on your taste, but it has not been declared carcinogenic and toxic by the US general surgeon and the environment protection agency of California, as far as I know. you should rather comparing it to this: if I had a vat of toxic chemicals or manure whose fumes enter my neighbor's living room, do you think it'd be OK?

as I was reading on how to prove nuisance, one of the key elements was to determine the reasonable response not of the plaintiff, but of a reasonable member of the general public. I think the average person would not consider bbq smell a nuisance, but certainly manure, and perhaps tobacco smoke. it should help, hopefully, if I show the judge the city ordinance that says the toxic nature of tobacco smoke makes it a nuisance and a trespass. just because the ordinance does not apply to my house does not change the nature of tobacco smoke. I believe a reason the city limited the ordinance to public places and multi-family dwellings was to not get entangled with enforcement all over the city's single family houses.

 

[Zigner]

thanks. I could not find any statutory damages, but I did find several definitions of nuisance and how to help me prove it to the judge. I'm not saying you're wrong about personal injury, I just thought this: eating a burger is unhealthy, but tobacco smoke is carcinogenic and toxic, so merely inhaling it forcefully in your living room would be enough to prove injury, especially considering the relaxed rules of evidence in small claims. again, not saying this is right, just what I was thinking.



no because barbeque smell might be annoying or not, depending on your taste, but it has not been declared carcinogenic and toxic by the US general surgeon and the environment protection agency of California, as far as I know. you should rather comparing it to this: if I had a vat of toxic chemicals or manure whose fumes enter my neighbor's living room, do you think it'd be OK?

as I was reading on how to prove nuisance, one of the key elements was to determine the reasonable response not of the plaintiff, but of a reasonable member of the general public. I think the average person would not consider bbq smell a nuisance, but certainly manure, and perhaps tobacco smoke. it should help, hopefully, if I show the judge the city ordinance that says the toxic nature of tobacco smoke makes it a nuisance and a trespass. just because the ordinance does not apply to my house does not change the nature of tobacco smoke. I believe a reason the city limited the ordinance to public places and multi-family dwellings was to not get entangled with enforcement all over the city's single family houses.

You are not going to win because you have no damages. Small claims is (with a non-applicable exception) about money.

 

[LdiJ]

What is the name of your state (only U.S. law)? CA

I live in a single-family house (not a HOA), and in summer tobacco smoke drifts from my neighbor's house into mine.

The US Surgeon General declared there is no safe level for 2nd hand tobacco smoke. I live in Temple City, which has an ordinance for 2nd hand tobacco smoke for public places and multi-family buildings, but not for single-family. The ordinance states that unwelcome 2nd hand smoke in a property is a nuisance and a trespass.

Therefore, even though there's no statute specifically addressing my situation, I guess it could be considered as either personal injury, nuisance or trespass or all of them.

I am thinking to file a lawsuit in small claims. Do you think it's applicable? Honestly, I only want this to stop, and I was thinking to file without asking for money but I researched the fact that I cannot do that, so I can either ask a nominal amount like $10, or just file the amount I think is fair.

If I am unsuccessful, I understand I cannot file in the superior court. But, could my wife then file in superior court, since she would not be named in the small claims case?

Thank you for your time.

What is the distance between the two homes? Personally, unless you are in one of those areas where there is only 3 or 4 feet between homes I cannot imagine how you are even smelling someone's cigarette smoke from another home.

 

[xylene]

Beyond YOUR self report of smelling tobacco smoke...

How will you establish proof of the trespass and of the SOURCE?

 

[CaliforniaBear]

Beyond YOUR self report of smelling tobacco smoke...

How will you establish proof of the trespass and of the SOURCE?

for some reason my latest replies have not posted. I have a note my neighbor left in front of my door where he says he doesn't think his smoke entering my house is a problem. that should prove he admits to smoking

 

[CaliforniaBear]

You are not going to win because you have no damages. Small claims is (with a non-applicable exception) about money.

I linked to a huffington post article about a case in CA where the jury awarded damages for second hand smoke in a multi-family dwelling (about the right of quiet enjoyment of your house). perhaps the link is what prevented my post from showing

 

[CaliforniaBear]

What is the distance between the two homes? Personally, unless you are in one of those areas where there is only 3 or 4 feet between homes I cannot imagine how you are even smelling someone's cigarette smoke from another home.

8-10 feet between windows. I wish I was imagining it

 

[Zigner]

8-10 feet between windows. I wish I was imagining it

Close your windows - if that doesn't work, have a pro come out to seal your windows.

 

[CaliforniaBear]

Close your windows - if that doesn't work, have a pro come out to seal your windows.

good thing that family in Orange county didn't take this advice, or they would be short $15000

 

[tranquility]

8-10 feet between windows. I wish I was imagining it

Your only real recourse is to petition the city council for a new law to protect you. In court, you cannot go to small claims court as you cannot get injunctive relief there except for certain specific things not at issue here. You will have a huge problem in determining causation of any damage, let alone damage at all. You are NOT going to win a damage to health element without a TON of legal expertise and a LOT more information that is simply not in the current literature. In other words, you would need to get some anti-smoking groups on board to support your cause. You might get an offensive to the senses element, but that is not really going to fly either. The nature, duration and amount of the purported nuisance does not rise to the level the law has anticipated to declare a nuisance.

That is not to say that someday, in the great wisdom of those who want to limit the amount of soda one can buy, this will not be a winnable lawsuit. The law seems to push more and more to limit smoking in legal ways and I would not show my shocked face if someday people start winning such things and get themselves some injunction.

That day is not today.

The chance of convincing three members of your city council to make a law is far better then crafting a legal argument that will work.

 

[tranquility]

good thing that family in Orange county didn't take this advice, or they would be short $15000

That had to do with a HOA's duty to the members of the association. Even then, it is an outlier and was not based on nuisance from someone you don't have a contractual relationship with.

Edit:
Here is a good summary I just found of the law on the matter. I was wrong in that you must have a contractual relationship with the person, but I note there are no successful suits in other than apartments or condominiums or other shared places.

http://www.hoalawblog.com/SmokingPlusCondosEqualsTrouble.pdf