Lawsuit for personal injury and illness from secondhand smoke?

by Rosemary
(Bardstown, KY)

After my divorce in 2007 I moved into a very nicely refurbished condominium - which turned out to be a nightmare due to an elderly gentleman living below me that smoked cigars all day long. I developed asthma (never smoked a day in my life).

In the three years I lived there I was in the emergency room with acute asthma attacks 5 times. There were follow-up visits with doctors, I developed pneumonia twice, and had three broken ribs from violent coughing. I lost a lot of work and accumulated a lot of medical expenses.

The elderly gentleman is still alive - I cannot sell or keep the condo rented because of the smoke issues. It is a 12 unit building and the whole building is permeated with smoke - not a single owner has been able to sell their units due to this issue.

I have filed grievances with the condo association which resulted in verbal commitments to "smoke outside" - the commitments lasted at most a month each. I checked with the local zoning administrator who told me since it was not new construction it did not have to meet the new codes regarding ventilation between units.

At the advice of my doctor, I moved out in 2010. I still have to take preventative asthma medication, but have not had any acute attacks since my move. I am now carrying two mortgages, and paying a condo fee on a unit that is unlivable. Surely I have some recourse? Is there anything I can do to pursue this legally?

Thanks in advance for any response and information that can be provided.

Visitor Question:
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ANSWER for "Lawsuit for personal injury and illness from secondhand smoke?":

Rosemary (Bardstown, KY):

In a word....no. To be able to have legal recourse of any type you would require medical proof the smoke was the direct and proximate cause of the asthma, or that the smoke exacerbated your asthma. Securing this proof proof will be very difficult. To do so will require a physician to write a medical narrative directly linking the smoke to your health problems.

The problem here is there are other factors which could also have caused your health problems. Those factors include smog, allergies, a natural deterioration of your health, and other separate factors. These factors will prove difficult to overcome.

There is a possibility the condo association might have some liability if you have proof there exists condo association rules and regulations prohibiting smoking within the units. If that is the case, than you would have an injury claim against the condo association based on negligence in failing to enforce the regulations.

Read the rules and regulations thoroughly. If you are able to find language prohibiting condo owners and tenants from smoking in their units, you can approach the condo association and ask then to pay for your medical bills.

If you are able to show the condo association failed to sanction the smoker, and take the actions permitted by the association’s rules and regulations to stop the man from smoking in the unit, and if you are able to secure medical proof in the form of a medical narrative from a physician directly linking your asthma problems to the smoke, then you would have at least the basis of a personal injury claim against the smoker and the condo association.

In the event you were to prove the condo association was negligent, your damages arising from their negligence could include your medical bills, out of pocket expenses, lost wages, and your pain and suffering.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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Air Pollution...
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Hire an expert epidemiologist to measure air sample quality and file the case as a nuisance and primary cause for air pollution.

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