A nonsmoker entered one of the defendant’s stores to do business on August 14, 1993.  Oliver alleges that the store was in violation of the Virginia Indoor Clean Air Act because the designated smoking area was so large that a reasonable no-smoking area was not provided, and was not separated from the no-smoking area by existing physical barriers that were reasonably practicable. He also alleges that he was harmed by exposure to secondhand smoke in the store and that K-Mart was negligent per se in that it violated the state statute, which was designed to protect people like him, a business invitee.  K-Mart filed a demurrer, saying that Oliver did not plead any facts which “establish any breach on the part of the defendant of any duty owed to the plaintiff.”  On June 29, 1994, the Court ordered that the defendant’s demurrer be over-ruled and that K-Mart’s responsive pleadings be filed within 21 days.  On January 30, 1995, Circuit Court Judge Alan Rosenblatt stopped the jury trial after Oliver had rested his case, ruling that Oliver had not presented enough evidence to prove his case.  See “Second-Hand-Smoke Suit Thrown Out,” The Virginian-Pilot (Norfolk, VA), January 31, 1995, B6.

No. CL-94-710, Circuit Court of Virginia Beach, Va. (1994).