Secondhand smoke is generally defined as the smoke that comes from the burning end of a cigarette, cigar, or pipe. Secondhand smoke is also the smoke that comes out of a smoker’s lungs when they exhale after smoking a cigarette, cigar, or pipe. Secondhand smoke is sometimes referred to as "environmental tobacco smoke".
Depending on the circumstances, a person can be both criminally and civilly liable for secondhand smoke.
Most cases that deal with secondhand smoke and civil liability focus on a person’s personal injury. Most courts apply the principles of civil assault and battery to find someone liable for secondhand smoke. To be liable, and injured person must prove:
- A person intentionally made their secondhand smoke touch the injured person,
- The secondhand smoke that touched the injured person was harmful or offensive, and
- The injured person did not consent to being touched by the secondhand smoke.
Lawsuits against a person for personal injury resulting from the contact of secondhand smoke are not without their defenses. Some of these include:
- Provocation from the injured person
- Accidentally blowing the second hand smoke
- The injured person assumed the risk of being touched by second hand smoke
Because smoking is seen as a serious health hazard more and more each day, many states and local governments have passed "anti-smoking" or "smoking ban" laws. Such laws make it a crime to smoke in or around places such as:
- Places of employment
The reason a person might be criminally liable for violating an anti-smoking or smoking ban law as a result of secondhand smoke depends on how a state defines the act of smoking. Some states have broad definitions that make the act of lighting a cigarette, cigar, or pipe and letting it burn a violation of their anti-smoking or smoking ban law. Other states require a smoker actually inhale the smoke. If the statute has a broad definition of smoking, it will generally cover secondhand smoke.
Punishment for secondhand smoke violations of an anti-smoking or smoking ban law can include:
- Community service
- Educational or treatment programs
If you think someone is liable to you for secondhand smoke, or you are being sued by another for their personal injury resulting from your secondhand smoke, it is highly recommended that you contact a personal injury attorney . If you are being criminally charged with violating an anti-smoking or smoking ban law because of your secondhand smoke, it is a good idea to contact a criminal defense attorney. Only an attorney will be able to adequately explain the issues and help defend your rights.