Second-Hand Smoke Lawsuits

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 What is Secondhand Smoke?

The phrase “secondhand smoke” can be defined as the smoke that is inhaled by persons other than the individual actually smoking.

For instance, if the person sitting next to you is smoking and you are forced to inhale both the smoke stemming from the end of their smoking utensil (e.g., a cigarette, cigar, pipe, etc.) and exhaled out of their mouth, then these would be examples of secondhand smoke. Hence, why secondhand smoke is sometimes referred to as “passive smoking” or “environmental tobacco smoke”.

People had been smoking for centuries before the first smoking cases began making their way into the courts. As science and technology improved, people started to realize how harmful smoking was to their health. The first wave of tobacco litigation began in the 1950s and has been growing ever since.

As more health risks and dangers were discovered, the number of cases skyrocketed. Eventually, it made sense for the courts to start consolidating cases against Big Tobacco as class action lawsuits. However, secondhand smoke was not considered an issue until the 1990s.

According to many medical studies conducted over the years, secondhand smoke can be just as harmful to a person’s health as smoking. This is especially true if a person has been exposed to secondhand smoke over a long period of time. In the 1990s, personal injury lawsuits for secondhand smoke began appearing in court as well.

While secondhand smoke class actions are still being filed today, they are very difficult to prove because these types of cases are so fact specific. Thus, it may be in your best interest to hire a lawyer if you are seeking damages for an injury related to secondhand smoke.

What is the Difference Between Mainstream and Sidestream Smoke?

As discussed in the example above, a person exposed to secondhand smoke is inhaling two different forms of smoke: mainstream and sidestream smoke. Mainstream smoke refers to the smoke that is exhaled by the person smoking. Sidestream smoke, on the other hand, is the smoke that billows from the end of a cigarette, cigar, pipe, and so on.

The main difference between the two forms of smoke, aside from where they originate, is that sidestream smoke contains higher concentrations of carcinogens and is considered more toxic than mainstream smoke. It is important to keep in mind, however, that regardless of the type a person is inhaling, there is no safe level of exposure when it comes to smoking and secondhand smoke.

What are the Risks of Secondhand Smoke?

There are a number of health risks and medical conditions that have been linked to secondhand smoke. Some of these include:

  • An increased risk of cancer;
  • Heart attacks;
  • Strokes;
  • Lung and/or ear infections;
  • Allergy or asthma attacks; and/or
  • An overall drop in a person’s immune system, which can lead to getting sick more often.

Again, these are only some of the risks related to secondhand smoke. Thus, it is evident how harmful smoking in general can be to a person’s health.

What Options Do I Have If I Have Been Exposed to Secondhand Smoke?

There are several legal options that may be available to a person who believes they have been injured due to exposure to secondhand smoke. While legal recourse may vary depending on state law and the facts of a case, some options include:

  • Bringing a personal injury suit (usually based on a claim of civil assault and battery);
  • Joining a secondhand smoke class action;
  • Reporting a smoker to law enforcement or a government agency (smoking in certain locations can lead to a criminal action); and
  • Various other civil claims that can be discussed in greater detail with a local attorney.

Can I File a Suit Against Tobacco Companies?

While a person may file an individual lawsuit against a tobacco company, they may be better off joining a class action. The reason for this is because it is generally hard to prove that secondhand smoke was the direct cause of a person’s illness. A class action involves many plaintiffs. Therefore, there is a significant amount more evidence to point to that can help when proving a case.

An individual may also be able to sue a tobacco company on behalf of a loved one’s estate. This action is usually known as a wrongful death suit and is not always feasible.

An alternative to joining a class action lawsuit is joining a mass tort claim instead. These have also proven more successful than individual claims. The main difference between a class action and mass tort suit is that in a mass tort, the plaintiffs will often be selected from the same geographic region and will be treated as individuals. In contrast, plaintiffs in class actions can come from anywhere and will be treated as a class.

Some common causes of action found in lawsuits that have been brought against tobacco companies include fraud, negligence, products liability, and consumer protection claims.

Does Secondhand Smoke Create a Dangerous Workplace Environment?

In general, a person who is exposed to secondhand smoke in their place of employment can potentially file a claim based on a number of different theories. Before initiating a claim, the first step a person should take is to check their state and local laws on smoking. Many states have banned smoking in the workplace.

Next, they should consult a lawyer to determine what type of claim they should bring (e.g., negligence, employment discrimination, products liability, etc.).

One popular method of obtaining recovery is to file a workers’ compensation claim. If successful, the person can receive benefits to pay for the costs of their injuries. The process for workers’ compensation claims will vary by state. Though it usually involves showing that exposure to secondhand smoke in the workplace caused the employee to develop an illness or made an existing medical condition worse.

Additionally, in some states, a person may be able to file an employment discrimination claim based on the American with Disabilities Act (ADA). In this instance, the person will have to file according to the procedures prescribed by the laws in their state, but it will generally involve reporting their employer to the ADA. The ADA may then instruct the employer to either ban or place a partial ban on smoking in the work environment.

Can I File a Class-Action Lawsuit for Secondhand Smoke?

A class action is a type of lawsuit in which one plaintiff, known as the “class representative”, will file on behalf of a large group of people (i.e., the “class”). To certify as a class action, it must be shown that the class has the same type of injury, that injury can be clearly defined and identified, they have both legal and factual claims that are very similar, and that there are enough persons to justify joining the individuals.

Based on these elements, the court will then decide whether to allow the action to move forward, and if so, will provide notice to those who are or may be included in the lawsuit. It should be noted that the requirements for class action lawsuits will change depending on the state and the type of class action filed. Thus, the requirements for certification and the necessary steps will be somewhat different for each lawsuit.

Filing a Lawsuit Against Homeowner Association, Landlord, or Neighbors for Secondhand Smoke

In the event that a person is suffering from secondhand smoke in their own home, they may be able to file a secondhand smoke nuisance lawsuit. Again, as with most other smoking lawsuits discussed here, the outcome will largely depend on the laws of a particular state and the facts of a case.

For example, an apartment dweller may file a case against their landlord if other residents are continuously smoking. The reason why this is possible is due to a property tenet known as the right to “quiet enjoyment”.

While a person can sue their neighbor for secondhand smoke, they would be better off suing the landlord or the homeowner association since they are more likely to recover a greater amount than what they may receive in damages from one neighbor. There are also certain rights that tenants have, which will provide them with a stronger case when it is brought against a landlord or homeowner association.

Finally, the resident should also consider filing a complaint with their local housing department. Under a federal law known as the “Fair Housing Act (FHA)”, those who provide housing must accommodate people with disabilities. If a person can prove that they are sensitive to tobacco smoke, then they just might have a case.

How to Prepare for a Secondhand Smoke Lawsuit

How a plaintiff prepares for a secondhand smoke lawsuit will depend on their claims and the laws of their state. For instance a personal injury lawsuit may be brought under a claim for assault and battery. In order to successfully sue for a secondhand smoke assault and battery claim, an injured plaintiff must be able to prove the following:

  • That the smoker intentionally made their secondhand smoke touch the plaintiff;
  • The secondhand smoke that touched the plaintiff harmed or offended them; and
  • That the injured person did not consent to being touched by the secondhand smoke.

Evidence that may support their case include medical records, witnesses, and documents that could potentially show they did not provide consent (e.g., emails saying to stop blowing smoke in their face, etc.).

Finally, it should be noted that the defendant may have several defenses available to assert against the claim.

Should I Consult an Attorney If I Have an Injury from Secondhand Smoke?

If you believe that you have suffered an injury as a result of secondhand smoke, you should contact a local personal injury attorney for further guidance. Your attorney will be able to determine whether you have a viable claim, can help you prepare and file a case if you do, and can represent you in court if necessary.

An experienced personal injury attorney can also explain the laws in your state and how they may affect the amount you receive in damages for a successful case, and can provide advice on government agencies in your area that may be able to assist with your matter as well.

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