Merrill v. Bosser

The Plaintiff and her family purchased a condominium.  The defendant, who smokes about one pack of cigarettes per day, was living in a unit one floor up and one unit over from the Plaintiff.  The smoke from that unit was not a problem for the Plaintiff and her family until the Defendant acquired a tenant who smoked heavily.  After that tenant moved in, the health of the Plaintiff and her family deteriorated; on one occasion, the Plaintiff’s smoke detector went off while on several other occasions, they had to move out.  After numerous complaints, the association advised the defendant that the tenant had to move out.  After the tenant left, the smoke problem stopped.  The Plaintiff sued seeking damages under the theories of trespass, common law nuisance and breach of covenant.  The court found the Defendant liable, ruling that the “unique facts” of this case indicate that the amount of smoke gave rise to a “disturbance of possession.”  The facts of this case “demonstrate an interference with property on numerous occasions that goes beyond mere inconvenience or customary conduct.  The court, which awarded the Plaintiff $1000 in damages and $275 in costs, concluded that the case is not about secondhand smoke but, rather, “about excessive secondhand smoke.”   See Samouce, R., “Secondhand Smoke Can Be Considered a Legally Actionable Nuisance,” Daily News (Naples, FL), November 8, 2005.

(County Court of the 17th Judicial Circuit, Broward County, FL 2005).