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Birke v. Oakwood Worldwide

ELR Citation: 39 ELR 20008
Nos. No. B203093, (Cal. App. 2d Dist., 01/12/2009)

A California appellate court held that the resident of an apartment complex that failed to limit secondhand smoke in outdoor common areas sufficiently pled a cause of action for public nuisance. The complex, by failing to act, created a condition that was harmful to health or obstructed the free use of the common areas of the apartment complex so as to interfere with the comfortable enjoyment of life or property. This condition affected a substantial number of people at the same time, an ordinary person would be reasonably annoyed or disturbed by this condition, and the seriousness of the harm outweighed the social utility of the complex's inaction. In addition, the resident did not consent to the conduct, she suffered harm that was different from the type of harm suffered by the general public, and the complex's conduct was a substantial factor in causing her harm. Accordingly, the resident pled a cause of action for public nuisance sufficient to withstand a demurrer.

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