In Ewen v. Maccherone, the plaintiff sued his neighbor claiming negligence and nuisance based on a claim that the cigarette smoke from the neighbor’s apartment had an objectionable odor that invaded his apartment and caused health problems for his infant daughter. The defendant filed a pre-answer motion to dismiss on the grounds that the plaintiff’s complaint failed to state a cause of action for nuisance or negligence. The court denied the defendant’s motion, holding that he failed to establish a conclusive defense as a matter of law. Specifically, the court found that the plaintiff’s allegation that the secondhand smoke interfered with his “rights, comforts and conveniences” as an apartment owner was enough to establish a claim of nuisance. Further, the court held that the plaintiff’s allegation that his daughter became ill and he was forced to evacuate his apartment several times as a result of the smoke was sufficient to establish a claim of negligence.
Thanks to Ed Lomena for his contribution to this post.