Syracuse City Court awards monetary damages for private nuisance

Where the defendant's smoking interfered with the plaintiff's property rights, the court determined this caused a private nuisance and awarded monetary damages to the plaintiff.

Reviewing the facts in Edgar Duntley v. Marion Barr, Syracuse City Court Judge David S. Gideon determined the plaintiff was only entitled to monetary damages for equipment purchased by him as a direct result of the private nuisance created by the defendant.

The Facts

The plaintiff, Edgar Duntley, brought an action seeking monetary damages of $5,000 incurred by him, allegedly caused by the defendant, Marion Barr, from smoking in her apartment.

Barr admitted to smoking in her apartment even though Duntley complained, in writing and orally, to his landlord and to Barr.

Duntley argued that Barr's smoking created environmental tobacco smoke (ETS) which infiltrated his apartment and caused interference with his use and enjoyment of the premises.

Duntley claimed that Barr's conduct caused medical damages, increased power consumption and caused monetary damages that resulted from his purchase of air purification equipment.

This case examined what recovery, if any, was available for damages incurred privately, versus publically, attributable to ETS, or second-hand smoke.

Court's Analysis

New York State has specifically recognized the human health dangers inherent in ETS. Article 13-E of the Public Health Law states there is a substantial body of scientific research showing that breathing secondhand smoke is a significant health hazard for non-smokers, L 1989, Ch. 244,.

Article 13-E of the Public Health Law regulated smoking and exposure in certain areas and the legislature specifically exempted the applicability of the article to private residences.

The legislature, while recognizing that ETS is a significant health hazard, wherever it may be encountered, chose to regulate only exposure in selected public places.

Nuisance

Judge Gideon concluded that Duntley's recovery must lie under the theory that Barr created a private nuisance for which she is liable, either intentionally or negligently.

A nuisance is a harm, injury, inconvenience or annoyance, and as compared to a public nuisance, a private nuisance threatens one person or a relatively few, Copart Industries, Inc. v. Consolidated Edison, 41 NY2d 564 at 568 (1977), citing, McFarlane v. Niagara Falls, 247 NY 340 at 344.

A feature of a private nuisance is the interference with the use and enjoyment of the premises and it is actionable by the person whose rights have been disturbed, Copart Industries at 568, see also, Zimmerman v. Carmack, 292 AD2d 601 (2002).

Barr's lease agreement provided that she would not do or permit anything that would interfere with the rights, comforts or conveniences of other tenants.

Barr admitted to smoking in her own apartment. The smoking bothered Duntley, and he complained to Barr and to his landlord, but to no avail.

Judge Gideon found that Barr's admitted behavior created ETS which infiltrated Duntley's apartment and caused an interference with his use and enjoyment of the premises. Barr's smoking created a private nuisance.

Proof Of Damages

The court determined Duntley failed to establish the entire extent of the damages allegedly caused by Barr's actions as he failed to present a specific reference to any medical damages.

The court therefore decided not to award any monetary damages to Duntley for medical expenses.

Judge Gideon reviewed Duntley's account activity statement from Niagara Mohawk and determined that Duntley failed to establish the existence of any increased power consumption as he alleged.

The court declined to award any monetary damages to Duntley for his power consumption.

Lastly, the court examined Duntley's monetary claim for the air purification equipment he bought due to the private nuisance created by Barr.

The judge held that Barr's conduct forced Duntley to incur the air purification expenses.

Conclusion

Judge Gideon found that Barr's behavior created ETS which caused an interference with Duntley's enjoyment of his apartment.

Although Duntley failed to establish the entire extent of his alleged damages, the court found in Duntley's favor in the amount of $335.13 - the amount of the air purification equipment.

The court also awarded Duntley filing fees of $20, for a total judgment of $355.13.

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