Legal Issue

Whether the Circuit Court erred (1) in denying Appellant’s motion for a preliminary injunction based on a finding that Appellant had only demonstrated that secondhand smoke, a known carcinogen, was an “offensive odor” and therefore not a nuisance; (2) in requiring “medical evidence demonstrating an unfavorable health condition” or “materially diminished property value” before determining the secondhand smoke to be a nuisance warranting the granting of a preliminary injunction; and (3) in applying the deferential “business judgment rule” in the context of a residential common interest community as opposed to the “reasonableness” standard.

Overview

The case involves a dispute about secondhand smoke between two neighbors living in adjoining townhouses. (See separate entry, Schuman amicus brief 2011). After the Maryland Court of Special Appeals affirmed the circuit court’s denial of preliminary injunctive relief, the case returned to the circuit court for final judgment. Despite taking judicial notice of the Surgeon General’s 2006 and 2010 reports describing in detail the adverse health effects of secondhand smoke, the circuit court judge concluded that exposure to secondhand smoke is not considered an injury and denied permanent injunctive relief.

On January 25, 2011, the Tobacco Control Legal Consortium filed an amicus brief with the Maryland Court of Special Appeals in support of Appellant David Schuman. (See separate entry, Schuman amicus brief 2011).  The Court denied permanent injunctive relief, finding that exposure to secondhand smoke is not considered an injury, despite taking judicial notice of the Surgeon General’s 2006 and 2010 reports describing in detail the adverse health effects of secondhand smoke. 

On May 7, 2012, the Consortium filed a second amicus brief arguing that the Circuit Court erred in denying the appellant’s request for permanent injunctive relief.  Joining the Consortium were the American Cancer Society Cancer Action Network, the American Lung Association, Americans for Nonsmokers’ Rights, the Association for Nonsmokers – Minnesota, the Maryland Group Against Smoker’s Pollution, Smokefree DC, and the Smoke-Free Housing Coalition of Maine. Our brief supports the appellant’s nuisance claim, again and focusinges on several troubling areas in the court’s ruling, including its characterization of secondhand smoke as “an offensive odor,” rather than a severe health threat, and the perception that smoking outdoors eliminates the hazards from secondhand smoke exposure.

Outcome

On June 8, 2011, the court of special appeals determined that the circuit court did not abuse its discretion in denying the preliminary injunction. The court noted that the circuit court did not take judicial notice of the 2006 Surgeon General’s Report and that the 2010 Surgeon General’s Report had not yet been published, resulting in insufficient evidence to mandate a finding that outdoor secondhand smoke is a nuisance per se. The court also declared reasonable the circuit court’s conclusion that plaintiff failed to demonstrate “irreparable injury” because of the lack medical evidence of actual or likely injury to the plaintiff from secondhand smoke. The case returned to the circuit court for final judgment.

On June 27, 2013, Maryland’s Court of Special Appeals affirmed the Circuit Court’s decision and remanded the case for entry of a declaratory judgment consistent with the lower court’s decision, ruling against the plaintiff David Schuman.