REGULATION OF AND LIABILITY ARISING FROM SMOKING IN COMMON OWNERSHIP COMMUNITIES
Recently, the Court of Special Appeals of Maryland issued a ruling that speaks directly to the rights of owners, and the obligations of community associations, in Maryland. This ruling is relevant to Boards of Directors for two reasons: first, it provides some peace of mind and protection for the association from liability in suits filed by homeowners who seek to recover damages for alleged harm caused by smoking that is occurring already within their communities; and, second, the opinion suggests that community associations may be able to limit or ban smoking entirely within their communities.
In Schuman v. Greenbelt Homes, Inc., Case No. 2020, September Term, 2011, the Court of Special Appeals considered the appeal filed by David S. Schuman (“Schuman”), a resident of the cooperative community Greenbelt Homes, Inc. (“Greenbelt”), who sued the community and his neighbor, alleging breach of contract, nuisance, trespass, and negligence resulting from the neighbors’ smoking. Schuman’s neighbors, the Popovics, had previously smoked within their unit, which shared a common wall with Schuman’s. However, at the time of the suit, the only ongoing activity was that Mr. Popovic smoked outside on his neighboring patio for roughly one hour in the evenings. At trial, the Circuit Court for Prince George’s County, where the community is located, refused to award Schuman an injunction against or damages from his neighbors’ smoking. The Circuit Court hinged its ruling upon its finding that Schuman did not prove any “actual harm” resulting from the smoking. He appealed to the Court of Special Appeals, whose reported decisions have precedential value (i.e. they will guide trial courts in future cases).
The Court of Special Appeals made three important findings early in its opinion: 1) Greenbelt had decided to allow smoking within its premises, and its decision to do so is protected from challenge in Maryland (absent fraud or bad faith) by the Business Judgment Rule; 2) Schuman’s allegations of nuisance are not governed by the community’s documents, but rather by Maryland common law, which consists of case law such as this opinion; and, 3) the act of smoking is not a nuisance per se, so a plaintiff must prove actual harm in order for smoking to constitute an actionable tort.
In making its third finding, the Court noted that smoking that occurs exclusively in one’s home or on one’s patio is unlikely to be substantially offensive to others. The Court further noted that various state statutes, while severely limiting and restricting public and workplace smoking, also contain specific exemptions for smoking in private homes. Thus, one reason that the Court will not declare smoking in one’s home a nuisance per se is that a declaration to that effect would be inconsistent with state laws. However, the Court’s finding does not preempt a community association’s attempt to ban or severely limit smoking. In fact, the opinion’s language leaves open the possibility that a community association could prohibit smoking within the boundaries of its property. With a resolution or bylaw amendment that bans or prohibits smoking already in place, a community would likely be dismissed from a case such as this one earlier in the proceedings, potentially saving or preserving time, money, property values, sale prices, and other valuable rights.
Turning to the facts of the case, the Court found that a nuisance “in fact” is readily distinguishable from the nuisance per se, the former being an act that is not necessarily a nuisance, but that rises to the level of nuisance based on the circumstances, location, or surrounding, and the latter being conduct that is a nuisance no matter the circumstances of its occurrence. The standard for determining whether a particular activity is a nuisance in fact is whether the activity unreasonably infringes upon what “ordinary people, acting reasonably, have a right to demand in the way of health and comfort under all the circumstances,” so, a particular sensitivity to smoke would not entitle Schuman (or any plaintiff) to relief.
The Court looked at two prior nuisance cases and determined that Schuman’s inconvenience (having a neighbor smoking outdoors for roughly one hour per evening) did not rise to the level of nuisance. The first case considered a noisy neighbor, and the second considered potentially contaminated water. The Court held that Schuman’s inconvenience, which amounted to not using his patio and closing his window while his neighbor was smoking, did not constitute substantial and unreasonable interference with the use and enjoyment of his property that was found to exist in both of the other cases. Because Schuman failed to establish that his neighbor’s smoking rose to that level, the Court affirmed the trial court’s finding that the smoking did not constitute a nuisance.[1] Using a similar analysis, the Court also found that there was insufficient proof of harm[2] to support a claim for negligence. The evidence offered about second-hand smoke was that it could be or might be harmful, but Schuman failed to make any actual link between the smoke and any physical damage, illness, or symptoms; and, the scientific evidence he offered to prove a rise in nicotine in his unit was vague and inconsistent.
Schuman was required to prove that his neighbor was negligent by smoking or that his smoking constituted a common law nuisance in fact because his community permitted smoking. Had there been a covenant or rule in place that limited or banned smoking in the community association, Schuman’s case might have begun and ended with the simple question of whether his neighbor’s conduct violated that restriction.
In sum, the Court found no liability against either the neighbor or the association for smoking based upon contract, nuisance, trespass, or negligence theories. Despite the Court’s finding, upon these facts, that Mr. Popovics’ did not rise to the level of nuisance, the Court pointed out that it was not stating that smoking could never be a nuisance. In fact, the Court went on to cite authority from other jurisdictions that might be useful in defending a smoking ban within a community association if one were adopted and later challenged. In so doing, the Court has provided some guidance to community associations who seek to ban or limit smoking within their property.[3]
[1] The Court further found that, in the absence of nuisance, there could be no possible constructive eviction, and that there was no physical damage to support the claim of trespass.
[2] Negligence is comprised of four elements: duty, breach, causation, and harm. A plaintiff must prove that he was harmed in some way by the alleged negligent conduct in order to recover damages. Furthermore, in Maryland, the plaintiff must not himself be negligent in causing the harm from which he complains, or he will be barred from any recovery whatsoever.
[3] The Court itself points out that this opinion was rendered on specific facts and is not the final word on the topic of common ownership communities and smoking, but it certainly provides some guidance.