Can You Sue Someone for Secondhand Smoke Exposure?

Secondhand smoke is the smoke that stems from the burning end of a smoking instrument, such as a cigarette, cigar, or pipe. The phrase can also refer to the smoke that is exhaled from the mouth of a smoker. Some other names that you may hear it called are “environmental tobacco smoke (ETC)” or “passive smoking.”

When Can Someone Be Liable for Secondhand Smoke?

Depending on the facts surrounding a case, a person can be held both civilly and criminally liable for causing secondhand smoke. For instance, civil cases for secondhand smoke often focus on the injuries inflicted on the victim. In other words, they are usually claims found as part of a personal injury lawsuit.

In such cases, most courts will apply the principles of civil assault and battery. Thus, in order to hold someone civilly accountable for secondhand smoke, the injured person must prove that the following elements exist:

• The respondent intentionally caused their secondhand smoke to touch the claimant;
• The secondhand smoke that touched the claimant harmed or offended them; and
• That the claimant did not consent to being touched by the respondent’s secondhand smoke.

If the victim can provide substantial evidence that proves all three elements exist, which in turn, results in a successful outcome for their case, then they will be able to collect a certain amount of damages.

Eligibility: Whether or not an individual will be eligible to sue for damages related to secondhand smoke exposure will generally depend on demonstrating harm or offense that was caused by the smoke. Individuals who have respiratory issues or other conditions that were made worse by the smoke may also have stronger cases. The key factor will be showing a direct link between the secondhand smoke exposure and the resulting injury or harm.

Damages for secondhand smoke cases typically lead to compensatory or monetary damages awards. Some parties that may be held responsible include the individual smoker, a distributor or reseller of tobacco products, or the tobacco companies themselves.

On the other hand, in some instances, a case for secondhand smoke may also be filed in criminal court. As smoking has increasingly become viewed as a serious health hazard, many state and local governments have instituted “anti-smoking” or “smoking ban” laws as a reaction. These regulations make it a crime to smoke in or near locations, such as:

• Schools;
• Places of employment;
• Hospitals; and
• Restaurants.

Whether or not a person may be held criminally liable for violating an anti-smoking or smoking ban statute due to secondhand smoke injuries will be contingent on how a particular state defines the act of smoking. For example, some state statutes provide a broad definition that makes something as simple as the act of lighting a smoking utensil (e.g., cigarette, cigar, pipe, etc.) and allowing it to burn a violation of these types of laws.

Other state statutes may contain a narrower definition that will require a smoker to actually inhale the smoke, as opposed to just lighting and letting the smoking object burn. Therefore, if a state law creates a broad definition for the act of smoking, then it will most likely cover secondhand smoke as well.

In general, the parties who can be held responsible for civil actions will also usually translate to who can be held liable for criminal actions, namely, the individual smoker, a distributor or reseller of tobacco products, or the tobacco companies themselves. In both types of actions, employers are another type of party who can be sued if the violation or injury occurred in the workplace.

The legal consequences for secondhand smoke violations of an anti-smoking or smoking ban laws can include:

• Fines;
• Community service;
• Educational or rehabilitative programs; and/or
• In extreme and rare cases, a term of imprisonment.

What Are the Steps to Take if Someone Exposed Me to Secondhand Smoke?

The proper steps a victim exposed to secondhand smoke should take will depend on the type of lawsuit they bring, the facts of their case, and the laws of the jurisdiction that will potentially be hearing the case.

For example, if the victim wishes to bring a lawsuit against their employer for secondhand smoke occurring in their place of employment, then they will need to check that their state labor laws and workers’ compensation benefits will not bar them from bringing the suit.

As such, a person who has been exposed to secondhand smoke and injured as a result, should strongly consider hiring a local attorney. An attorney will be able to discuss the best options for legal recourse, the appropriate steps to take based on the particular option chosen, and what kind of lawsuit the laws of a certain county or state will allow the victim to pursue.

In addition, a lawyer will also be able to determine whether the victim even requires a lawyer, or if they can settle the action on their own in a local small claims court.

Process/Steps: The initial steps following exposure to secondhand smoke should include documenting the incident, to include the location, date, time, and source. When possible, it is important to gather witness statements as well as seek medical attention in order to document any health issues that arise from the exposure.

Consulting with a local lawyer is advisable in order to understand the legal options as well as navigate the process of filing a claim, which can involve gathering additional evidence as well as following the specific requirements of the jurisdiction.

What Are the Possible Legal Remedies for Secondhand Smoke Cases?

As discussed above, there are various damages and remedies for secondhand smoke compensation claims. Some of these include:

• Monetary damages awards to pay for expenses, such as related medical costs, lost wages, and various other benefits;
• Court costs and/or attorney fees;
• Workers’ compensation benefits; and/or
• A court order strictly enforcing a ban or partial ban on smoking in the location where the incident in question occurred (e.g., the workplace, a public housing residence, etc.).

Other Considerations Related to Lawsuits for Secondhand Smoke Exposure

Timelines: There will likely be a statute of limitations for filing a lawsuit related to secondhand smoke exposure. The deadline will likely vary depending on the jurisdiction as well as the type of claim.

Personal injury claims typically have specific time limits. Failure to file within the time period required will typically result in the claim being barred. Because of this, it is important to consult with a lawyer to determine the applicable statute of limitations in the specific jurisdiction.

Evidence/Documents: Evidence is secondhand smoke cases usually includes witness statements that describe the exposure, medical records that document health issues, and documentation of the source and frequency of the smoke. Expert testimony from a medical professional can be used to establish a causal link between the secondhand smoke exposure and the health issues.

Depending on the specifics of the case, an industrial hygiene expert may also be needed to quantify the level of exposure as well as assess the potential health risks.

Costs/Fees: There may be various costs beyond attorneys’ fees for pursuing a secondhand smoke lawsuit, such as court filing fees, expert witness fees, if needed, deposition costs, and expenses related to gathering evidence.

The specific costs of pursuing a claim will vary greatly depending on the jurisdiction where it is filed and the complexity of the case. It is important to review any potential costs with a lawyer in order to understand the financial implications of pursuing a claim.

Do I Need an Attorney for My Secondhand Smoke Case?

There are many benefits to hiring a secondhand smoke lawyer if you have been injured by its effects. For one, your lawyer will be able to determine whether you have a viable claim based on the specific smoking laws enacted in your state or county.

If you do, then a lawyer can walk you through the proper steps and discuss what potential remedies you may be able to claim if your lawsuit is successful. Finally, among many other valuable benefits, your lawyer can also provide representation on your behalf in court or during negotiations for a settlement.

Thus, as you can see, it may be in your best interest to consider hiring a local secondhand smoke lawyer or class action attorney if you have suffered injuries caused by the harmful effects of secondhand smoke.