A recent California Court of Appeals decision (Birke v. Oakwood Worldwide – filed January 12, 2009, Second District, Div. Seven) found that a tenant can sue its landlord for a nuisance based on second hand smoke stemming from the common areas of the property.
This opinion is interesting in that it found that the landlord has an indisputable duty to take reasonable steps to maintain its premises in a reasonably safe condition, its failure to impose any type of limitation on smoking in common areas, including swimming pools and the children’s playground that the plaintiff minor child has a right to use and enjoy, breached that duty.
It will be interesting to see what effect this opinion has on landlords in California. Will they ban smoking in common areas of their properties? Will they designate smoking areas?