The Upstairs Neighbor: A Story of Smoking Away a Neighbor’s Health

Smoking is harmful to human health. This is now a well-established fact. Yet, some people continue to make the conscious choice to smoke. That is their prerogative… until it affects the health and well-being of another person.

We live in a society of tolerance so that each of us may benefit from individually exercising personal choices and preferences. We, Americans, like this. Take a moment to think of all the unpleasant things that you tolerate on any given day. In Southern California, traffic is a big one. The heavy metal blaring from the open windows of the car next to you could be another. Your neighbor’s barking dog? The smell of your co-worker’s tuna sandwich? These are examples of relatively harmless consequences that stem from individuals exercising their personal choices.

However, where does smoking, which is known to harm human health, fit in with respect to being a personal choice? Should someone be allowed to smoke at all costs? Is it right to allow one person’s choice to detrimentally affect another person’s health? It seems the answer to this is a resounding “NO.” Consider the following scenario.

What if you lived in an apartment complex above a neighbor who continuously smoked each and every day in the apartment, or outside the front door, or on the balcony? What if you, the upstairs neighbor, a low-income, elderly, non-smoker, were forced to smell and breathe in this cigarette smoke each and every day for five years?

What if, you, the upstairs neighbor, informed your apartment complex manager many times of the heavy smoke that you were breathing every day? What if nothing was done despite notifying management for five years?

The “upstairs neighbor” is a real person who suffered real harm—she developed Chronic Obstructive Pulmonary Disease, an incurable disease, in 2015, four years after she moved into her apartment above the downstairs neighbor. The Southern California personal injury attorneys at the Roberts Law Firm represent the upstairs neighbor for her serious, personal injuries. The case was filed in Orange County Superior Court on August 15, 2016, naming the property management companies, and the owners of the property, as defendants.

At some point a line must be drawn, and smoking must fall on the side of a personal choice that can be restricted. Smoking is a unique personal choice in that it is legal, but it is also deadly to other people. But, as far as the law goes, no one has the absolute right to smoke. Plain and simple. In fact, the law presently provides certain measures for addressing pollutants, such as smoke. California Civil Code section 3479 reads:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, . . . so as to interfere with the comfortable enjoyment of life or property, . . . is a nuisance.

A nuisance claim is not enough, however. The law needs to go further so as to provide more remedies to people like the upstairs neighbor whose property managers refused to take action to protect her health. Lower income residents including children across Southern California, and beyond, face similar predicaments, and the law needs to protect these victims.

We may be on the brink of stronger responses to the harmful effects of smoking as the public attitude appears to be shifting. For example, right here in Orange County, Laguna Beach is considering a city-wide smoking ban that would ban the use of cigarettes in public places.[1] If this ordinance passes, it may be the catalyst for other cities in Orange County, and elsewhere in Southern California, to take action to protect the public health.

In a separate post, we will introduce to you the “upstairs neighbor.” You will hear the story of this elderly woman who was plagued by a constant supply of thick cigarette smoke, which ultimately caused permanent damage to her lungs, changing the way she will live for the rest of her life.

[1] Laguna Beach could be the first in Orange County with citywide smoking ban, The Orange County Register, available at (Jan. 26, 2017).

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