Coppinger v Gray (2015) H&FLR 2015-27

Brendan Coppinger and Nessa Coppinger v Edwin Gray and Mozella Johnson (2015) H&FLR 2015-27

Superior Court of the District of Columbia

2 March 2015

Coram: Beck J

Appearing for the Plaintiffs: Eric Klein (of Beveridge & Diamond)
Appearing for the Defendants: Self-represented

Catchwords: District of Columbia – neighbour – smoking – tobacco – negligence – nuisance – trespass – injunction

Facts: The first defendant (Gray) lived in a Washington DC house owned by the second defendant (Johnson).  The house had been purchased by their mother in 1964.  In mid-2014 the plaintiffs and their infant daughter moved into the adjoining house.  The first defendant conceded that from time to time he would smoke tobacco and marijuana and burn incense.  The plaintiffs alleged that this caused their house to smell of (or become filled by) smoke, causing loss of amenity and a risk of personal harm.

There was significant evidence that there were cracks in the wall shared by the houses, that the defendants’ chimney was decaying, and that these factors were causing smoke to enter the plaintiffs’ house. The defendants alleged that shoddy renovations to the plaintiffs’ property had left the wall inadequately sealed.

Discussions between the parties did not resolve the matter and the plaintiffs issued proceedings in negligence, nuisance and trespass and claiming damages.  An interlocutory injunction on the defendant smoking in the premises was sought by the plaintiffs.

Held: Granting the injunction, that the defendant be forbidden from smoking any substance whatsoever inside his home.  Her Honour further ordered him to refuse to allow any person to reenter the house who smoked in breach of the order.  The order was to remain in force until further order or until the matter was finally heard.

Judgment

No written reasons are available.  This report has been prepared based on reports in the Washington Post of 10 March 2015 (here and here), by radio station WTOP and television station WJLA-TV.

Comment: This matter invites comparison with the German case of Proprietor v Adolfs (2014) H&FLR 2014-36. One might infer that the law will be particularly receptive to claims of loss of amenity due to smoking, particularly in light of other cases which suggest tobacco use is coming to be considered a social burden (for example, Police v Dumughn (2002) H&FLR 2015-23 and State v Native Wholesale Supply (2014) H&FLR 2014-32).

Proprietor v Adolfs (2014) H&FLR 2014-36

Proprietor of a house in L. Street  v Friedhelm Adolfs (2014) H&FLR 2014-36

Düsseldorf Regional Court

26 June 2014

Coram: Ralf J.

Appearing for the Plaintiff: Prof. Dr. Carmen Griesel (of Griesel & Kollegen)
Appearing for the Defendant: Mr Martin Lauppe-Assmann (of Lauppe & Hassenkamp)

Catchwords: Germany – tobacco – smoking – landlord and tenant – nuisance – eviction.

Facts: The defendant had been a caretaker at a block of flats from 1973 to 2009. He was provided with an apartment as part of his remuneration. After retiring in 2009 he rented the flat under a standard contract.

The defendant was and is a smoker, consuming about 15 cigarettes a day. It was admitted (but later denied) that he had allowed cigarette smoke to escape into the stairwell and other parts of the building rather than allowing it to escape through open windows. It was found that his landlord had repeatedly warned him verbally and in writing about the escaping odour from 2012.

The plaintiff sought the defendant’s eviction on the basis that cigarette smoke was passing into the stairwell of the apartment building and was allegedly a health hazard for other residents. The eviction was upheld: Proprietor v Adolfs (Düsseldorf District Court, Rundel J, 31 July 2013). The defendant appealed.

Held: Dismissing the appeal, that –

1. The fact that a tenant smokes in their apartment is not a breach of their tenancy contract.

Case No. VIII ZR 37/07 (Federal Court of Germany, 5 March 2008), followed.

2. However, other tenants in the building were not to be expected to endure “unacceptable and intolerable odour”.

3. The defendant was in breach of his tenancy agreement by failing to take adequate steps to prevent cigarette smoke from entering the common areas of the building by not airing his home and not emptying his numerous ashtrays. This provided a sufficient basis to terminate his tenancy.

Case No. 6 S 313/06 (Braunschweig Regional Court, 10 April 2007), considered.

4. In view of the defendant’s long residence in the apartment, however, he was given until 31 December 2014.

Judgment

The Court’s judgment is available here.  An appeal to the Federal Court of Germany is contemplated