Court prohibits owner from smoking in his condo unit


Attorney Jim Olsen discusses a case wherein the court enjoined the owner from smoking in his condo unit


Attorney Tom Olsen: The call had to do with this that he showed us a court order. It was an injunction from a condo owner who had brought this suit so the owner, A, is the plaintiff for this action. He sued his neighbor and the neighbor's tenant and got an injunction ordering the neighbor owner and the tenant to never smoke cigarettes or burn incense again in her condo. The caller when he called me and I was a bit taken aback that a court could order somebody not to smoke cigarettes within their condo building. I couldn't believe it, but when I sent it on to you and you gave me kind of informed me, educated me about this particular issue. Tell the listeners about it.

Attorney Jim Olsen: The information I have is what's available in the court file. I have a couple of comments. First, I'm doing a lawsuit against Jeff Earnshaw who was a plaintiff's attorney, so it's always a small world in my little pond. If there was one thing that surprised me about the case, it's not that the court ordered someone to not smoke in their private condominium it's really that this was the first case I'm familiar with where there was no expert testimony proffered that detailed how bad the smoke was. All the other cases I'm familiar with the owners have gone to great lengths sealing up walls, sealing up any penetrations where smoke could get through. They've done all that and they still have a problem and they have experts come in and say well there's nothing we can do it's a smoking in the unit. This one was a little different because there was no expert testimony that I saw in the court file at least. It was really just the testimony of the owners and their doctors saying they're getting sick from the secondhand smoke.

Attorney Tom Olsen: If we looked at the complaint in that lawsuit and I did too and you as well, tons of allegations about how the neighbors' cigarette smoke was bothering them and how intrusive it was and how extreme it was, but there was no evidence from experts in that case, backing up these allegations within the complaint is what you're saying.

Attorney Jim Olsen: Yes, and no expert testimony as to-- Some condominiums have single stack type AC systems. It's on the roof and it runs all of different. You can get air from one unit to another that might cause cross-contamination from other smoking units. I can't necessarily disagree with the findings of the court, but I think it was a little bit different from the other cases I'm familiar with.