Assoc. Les Droits des Non-Fumeurs v Sté Indiana Richelieu Drouot (2013) H&FLR 2015-31

Association Les Droits des Non-Fumeurs v Société Indiana Richelieu Drouot (2013) H&FLR 2015-31

Court of Cassation (France)

13 June 2013

Coram: Bizot P, Kriegk C and Maitre AG

Appearing for the Plaintiff: SCP Yves et Blaise Capron.
Appearing for the Defendant: SCP Celice, Blancpain & Soltner.

Catchwords: France – tobacco – non smoking area – public access – enclosed

Facts: The defendant operated “Café Indiana” at 18 Montmartre Boulevard, Paris.  The terrace of the cafe was found to be closed on its three main sides and to be only partly ventilated beneath its roof.

Article L.3511-7 of the French Code of Public Health forbids smoking in places given over to collective use.  Pursuant to Article 8 of the World Health Organization’s Framework Convention for Tobacco Control, such places include enclosed and covered areas which are workplaces or which are intended to be accessed by the public.

The plaintiff brought proceedings against the defendant alleging a breach of Article L.3511-7 and claimed damages and an injunction.  The proceeding was dismissed by the trial court (Assoc. Les Droits des Non-Fumeurs v Sté Indiana Richelieu Drouot, Paris Tribunal de Grand Instance*, 14 September 2010, unreported).  The plaintiff’s appeal was dismissed (Assoc. Les Droits des Non-Fumeurs v Sté Indiana Richelieu Drouot, Paris Court of Appeal, 11 May 2012, unreported).  The plaintiff further appealed to the Court of Cassation.

Held: Allowing the appeal and remitting the matter to the Versailles Court of Appeal, that the cafe’s provision of only partial ventilation under its roof while being closed on its three main sides was inadequate to respond to the law’s requirements.

Judgment

The Court’s judgment is available here.

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* Roughly, the Paris Superior Court.

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

State v Native Wholesale Supply (2014) H&FLR 2014-32

State of Oklahoma ex rel. E. Scott Pruitt v Native Wholesale Supply (2014) H&FLR 2014-32

Supreme Court of Oklahoma

10 June 2014

Coram: Colbert CJ, Reif VCJ, Watt, Winchester, Taylor, Kauger and Gurich JJ.

Appearing for the Plaintiff: E. Clyde Kirk and Ryan R Chaffin (Assistant Attorneys-General)
Appearing for the Defendant: David L. Kearney, Gregory T. Metcalfe and Paula M. Williams (of Gable Gotwals)

Catchwords: Oklahoma – tobacco – health care expenses – contraband cigarettes – disgorgement – settled law of the case – jury trial

Facts: In 1999 and 2004 the Oklahoma legislature enacted two statutes in relation to the sale of tobacco products* (Acts). The effect of the Acts was to require tobacco product manufacturers whose products were sold in Oklahoma to pay money into escrow accounts to cover health care expenses resulting from cigarette smoking. The State’s Attorney-General would publish a directory of cigarette brands that may be sold in Oklahoma and a list of tobacco product manufacturers who had complied with the Acts. The Acts made it unlawful for a person to sell or possess for sale cigarettes which were not listed in the directory or where the manufacturer had not complied with the Acts.

In August 2006 ‘Seneca’ brand cigarettes and their manufacturer (Grand River Enterprises Six Nations Ltd) were removed from the directory. In 2007 and 2008 the defendant, Native Wholesale Supplies (NWS), brought Seneca cigarettes into the State. In May 2008 the Attorney-General commenced proceedings seeking disgorgement and payment to the State of NWS’ gross proceeds of sale of the contraband cigarettes. After an intervening dispute over jurisdiction (State ex rel. Edmonson v Native Wholesale Supply, 2010 OK 58, 237 P.3d 199) (NWS I), the Oklahoma County District Court on 9 May 2013 entered judgment against NWS for $47,767,795.20. NWS appealed.

Held: By Colbert CJ, Reif VCJ, Watt, Winchester, Taylor and Kauger JJ, dismissing the appeal, that –

1. The “settled-law-of-the-case doctrine” forbids parties re-litigating issues which are finally settled by an appellate decision or which a party failed to raise on appeal. Accordingly, the factual conclusions in NWS I were binding on the parties and the District Court.

Smedsrud v Powell, 2002 OK 87, 61 P.3d 891, followed.

2. The defendant was not entitled to a jury trial on the unsettled factual issues because the Acts did not provide for a jury trial andf neither the Federal nor State constitutions required one to be held. The right to a jury trial recognised in the Oklahoma Constitution referred to the right as it existed at the time of the Constitution’s adoption.

A.E. v State, 1987 OK 76, 743 P.2d 1041; Maryland National Insurance Co v District Court of Oklahoma County, 1969 OK 73, 455 P.2d 690; Keeter v State, 1921 OK 197, 198 P. 866, followed

A dissenting judgment was entered by Gurich J.

Judgment

The Court’s judgment is available here.
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* The “Escrow Statute“, 37 O.S. Supp 1999 §§600.21-600.23 and the Master Settlement Agreement Complementary Act, 68 O.S. Supp. 2004 §§360.1 et eq.