A nonsmoking tenant filed suit, claiming that the defendant housing authority committed negligence and breach of the covenant of quiet enjoyment by not responding to her complaints regarding infiltration of her apartment of tobacco smoke from a downstairs apartment.  A Superior Court judge awarded the defendant summary judgment on the basis of the plaintiff’s failure to prove the presence of smoke in her apartment and any defect for which the defendant should be held liable.  “The evidence of smoke in the plaintiff’s apartment is, in essence, that the plaintiff and others smelled smoke there, and that she experienced symptoms that she attributed to smoke.  Notably absent from the record is any evidence that anyone has ever tested the air in the plaintiff’s apartment for the presence of cigarette smoke…Evidence is similarly lacking of the existence of any defect, of which the Housing Authority had notice, resulting in smoke infiltration,” the Court ruled.

On October 1, 2004, the Appeals Court of Massachusetts, at 62 Mass. App. Ct. 1104, 815 N.E.2d 1103, 2004 Mass. App. LEXIS 1114, reversed summary judgment on counts I, II and III of the complaint and affirmed summary judgment of Count IV.

Norfolk County (MA) Civil Action No. 01-00933, 16 Mass. L. Rptr. 318, 2003 WL 21246199 (2003).