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Man's Suit Over Neighbors' Cigarettes Could Open New Front in War on Tobacco

July 05, 1996

Roy Platt's got a gripe. And he insists he's not just blowing smoke.

Quite the reverse, in fact. Platt complains he's breathing smoke--cigarette smoke that drifts through his open windows from the condominium below. He finds the odor intolerable, the health risk alarming.

So he's suing his downstairs neighbors for creating a nuisance and threatening him with physical harm. For good measure, Platt is also suing the officers of his Westside condo owners association, arguing that they have a responsibility to either ban smoking or impose conditions on smokers (such as insisting that they close their windows, install air filters or use smokeless ashtrays) to ensure that he never has to breathe another cigarette fume.

Platt's lawsuit fits right in with the national drive to regulate tobacco. It also reflects a growing intolerance for secondhand smoke--which is fast becoming an irritant in neighborly relations.

"We are getting an increasing number of complaints just like this," said John Banzhaf, a law professor at George Washington University and the executive director of the nonprofit group Action on Smoking and Health. Banzhaf said he has also heard complaints about smoke drifting through vents into neighboring units. Most disputes can be resolved in negotiations between the smokers and their neighbors, Banzhaf said. Actual lawsuits on the issue are rare.

Most of the targets of Platt's suit, filed late last month in Los Angeles Superior Court, declined to comment on the allegations while they looked for attorneys to represent them.

But neighbor Steve Landi, one of the defendants, called it "ludicrous" that anyone would go to court over the "six or seven cigarettes" his elderly mother smokes in her bedroom each day. A self-described "reformed smoker" who quit for good seven years ago, Landi said he thought the lawsuit was out of line. "Some perspective needs to be placed here," he said.

For years, most Americans assumed that smoking was a private activity. No one could stop you from eating cholesterol-packed breakfasts of eggs and bacon; similarly, no one could bar you from lighting up a Marlboro in your bedroom. As the anti-tobacco campaign has gained momentum, however, legal scholars have begun questioning that assumption.

"What's that old adage? My right to swing my fist ends at your nose?" Banzhaf asked. He pointed out that both municipal governments and homeowners associations can regulate other "nuisance" activities, such as blaring rock music or using strong-smelling industrial chemicals. So why not regulate smoking?

Platt's lawsuit could become a test case for that argument. His lawyer, Joseph M. Cobert of Encino, said he has not spotted any similar cases in extensive research.

"His claims are by no means automatic winners, but they're interesting and they're hardly frivolous," UCLA law professor Gary T. Schwartz said. "It's not nutty."

The legal definition of "nuisance" is what Schwartz calls "loosey-goosey," meaning it can expand to cover almost any situation where an annoying activity interferes with a neighbor's use of his property.

Even before Platt's suit, scholars had already started to consider whether smoking might be a legal nuisance--or whether blowing smoke in someone's direction might be serious enough to meet the official definition of battery. "It's a new theory that's beginning to get attention in the legal journals," Schwartz said. "You're starting to see papers with titles like 'Smoking as Battery.' "

To Platt, there's no doubt about it: his neighbor's smoking, he said, made him sick. It also triggered bad memories, as both his parents died of lung cancer. Although he gave the Landis a smokeless ashtray and offered to buy them an air filter, Platt said the smoke still wafted into his condo.

Platt, 49, does not work. So he remains in his home most of the day, working on model trains. He picked his $175,000 condo on South Peck Drive after sniffing around potential homes and finding the one that seemed least tainted by cigarette smoke. The Landis, he said, moved in as renters several months after he closed escrow.

"It's been absolutely unbearable," Platt said. "The smoke comes right into my room, like mustard gas."

Or at least it used to. Since he filed the lawsuit, Platt said, his air has remained blissfully smoke-free. He's not ready to drop the case--he still fears the cigarette smoke could invade his air again at any moment.

But for the time being, he's breathing easy.

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