As noted in prior posts, California interprets the concept of nuisance very broadly, which has made this tort the weapon of choice in state court environmental and some toxic tort matters. Although addressing a second-hand smoke issue, the California Court of Appeal in Birke et al v. Oakwood Worldwide et al, 2009 Cal. App. LEXIS 19 (1/12/09), redefined the interplay between private and public nuisance, which has major implications for the use of these torts in environmental and toxic tort matters.
Most second-hand smoke litigation in California has been pursuant to Proposition 65. However, in Birke, a minor (through her guardian ad litem) brought a public nuisance claim that her apartment complex permitted smoking in a number of outdoor areas (swimming pools, common barbeque areas, playground areas, and outdoor dining areas) that exposed her to second-hand smoke. The complaint asserted that secondhand smoke was “harmful to health,” “indecent and offensive to the senses,” and “obstructed the free use of the property, so as to interfere with the comfortable enjoyment of life or property by residents of [Oakwood].” The complaint also cited California Air Resources Board (CARB) and Surgeon General findings that secondhand smoke is “an airborne toxic substance that may cause and/or contribute to death or serious illness,” “there is no risk-free level of exposure to secondhand smoke,” and that nonsmokers have increased risks of heart disease and lung cancer when exposed to secondhand smoke. The complaint did not allege that the general public suffered from respiratory distress, rather it alleged the general public suffers an increased risk of heart disease and lung cancer and those are different in kind from the aggravation of allergies and asthmatic symptoms that Birke suffered from.
Oakwood demurred to the complaint for public nuisance, claiming that Birke lacked standing under California Civil Code Section 3493 which provides that individuals may assert claims for public nuisance only where they have suffered a special injury that is different in kind, not just degree, from the general public; this has been the generally accepted view of the distinction between public and private nuisance. The demurrer also noted that even if Birke were to assert a private nuisance claim, as a minor with no personal tenancy interest in the Oakwood apartment, she would lack standing. Oakwood further argued that to the extent Birke has standing, Oakwood did not have a legal duty to prohibit smoking in the outdoor common areas of the complex and thus could not be liable for failing to abate the alleged nuisance. The demur was granted with leave to amend. Birke filed a first amended complaint, which restated the public nuisance claim, and also stated a claim for private nuisance; several additional Oakwood entities were added as defendants. Other statutory actions were also plead; because even the Court of Appeal held these additional claims were inapplicable, they are not considered in this post. A demur to the first amended complaint was granted without leave to amend.
In the Birke case the Court of Appeal considered the issues. The Court noted that to adequately plead a cause of action for public nuisance based on the presence of secondhand (or environmental) tobacco smoke in the outdoor common areas of her apartment complex, Birke, through her father as guardian ad litem, must allege (1) Oakwood and the various related entities that manage and operate the apartment complex in Woodland Hills in which the Birke family resides, 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 Oakwood's conduct; (5) neither Birke nor her parents consented to the conduct; (6) Birke suffered harm that was different from the type of harm suffered by the general public; and, (7) Oakwood's conduct was a substantial factor in causing Birke's harm.
Since the complaint stated that all guests to the complex are impacted by second-hand smoke, whether or not they visit the public areas explicitly noted, the Court held that rules of pleading were satisfied as to the "affect substantial number" element. As to the requirement that the injuries be difference in kind, the Court noted that "In marked contrast, the aggravation of Birke's childhood asthma and chronic allergies alleged in the first amended complaint is not at all similar to the increased risks of heart disease and lung cancer the general public (or that portion of the public who uses Oakwood's outdoor common areas) faces, although both are caused by breathing secondhand tobacco smoke. At the very least, we are not prepared to say, as a matter of law and at the pleading stage of this case, the injuries are of the same kind and simply differ in degree." This is an "interesting" holding because it permits a plaintiff to plead the unique physiochemical and/or medical circumstance such that the individual can state what has generally been considered a public nuisance. As noted in prior posts, all of humankind is to some degree biochemically and physiologically unique and has susceptibilities to illness and disease that differ one human from the other; it is in the face of modern medicine, with its ever-growing understanding of DNA, RNA, proteins, and other key factors that many traditional legal concepts begin to wither and fail. Though the Birke court is clearly not going that far, this may be the beginning of that journey.
The Court also noted that prior case law, at the Court of Appeal level (of course), may be wrong in light of phrasing in California Supreme Court cases, even some over a century old. Further, the Court cited to the Restatement 2d for this new paradigm. "When the public nuisance causes personal injury to the plaintiff or physical harm to his land or chattels, the harm is normally different in kind from that suffered by other members of the public and the tort action may be maintained. (Rest.2d Torts, § 821C, com. d, p. 96.)"
Finally, the Court notes that when the nuisance is a private as well as a public one, there is no requirement the plaintiff suffer damage different in kind from that suffered by the general public. That is, in the case of property damage, for example, the plaintiff does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree, citing to THE authority we all studied in law school, in this case using the Third Edition of Prosser on Torts, p. 609.
So, the new paradigm is allegedly not new. It is supported by 115 year old California Supreme Court cases, the Restatement 2nd, and that god-king, Prosser. Talk about throwing in everything including the kitchen sink.
Finally, the Court quotes well established case law in California that the plaintiff need not be the renter him/herself. Members of their family may also bring an action “for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance.” Thus, Birke may bring an action.
The allegations made about the "offensive" nature of second-hand smoke support the nuisance claim. However, the Court does note that Birke still needs to properly plead that the harm outweighs the social utility of Oakwood's conduct in allowing the outdoor smoking; the trial court should not have refused leave to amend. Having so stated, the Court then in essence defines the obligations of Oakwood such that the conclusion is obvious: “Moreover, even if the first amended complaint were construed to allege only a failure to act, which in turn may require a finding that Oakwood has a duty to take positive action to prevent or abate the interference before an actionable nuisance can be established (see In re Firearm Cases (2005) 126 Cal.App.4th 959, 988 [24 Cal. Rptr. 3d 659]; Rest.2d Torts, § 824), the demurrer should have been overruled. As the Birkes' landlord, Oakwood plainly has a duty to maintain its premises in a reasonably safe condition. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 [60 Cal. Rptr. 2d 448, 929 P.2d 1239]; Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590 [19 Cal. Rptr. 2d 436].) The question is not one of duty, but of breach. That is, the issue presented by the first amended complaint is not whether Oakwood has a duty to ban smoking, ‘an otherwise legal activity in Woodland Hills,’ but whether, given its indisputable duty to take reasonable steps to maintain its premises in a reasonably safe condition, its failure to impose any type of limitation on smoking in common areas, including swimming pools and the children's playground that Birke has a right to use and enjoy, breached that duty. That question is not properly determined on a demurrer.”
The Birke case is truly revolutionary in its analysis of the interplay of public and private nuisance. The one weakness is that its analysis flies in the face of the literal wording of Section 3493 of the California Civil Code.