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Cigarette smoke wafting onto neighbor's patio brings lawsuit
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Richard and Donna Ganguet in their backyard. (SacBee.com)
This is the story of two neighbors and a dispute over secondhand smoke in the Sacramento suburb of El Dorado Hills.
It seems like a minor story, especially with everything that's wrong in California:
--A powerless governor
--A lethargic legislature
--A state teetering on bankruptcy
--Double digit unemployment
--A poorly ranked public education system
--A wasteful prison system
--Collapsing infrastructure
--Distressed natural resources
In short, the state is a disaster. You'd think with all those problems that a dispute between neighbors over cigarette smoke wouldn't generate much interest but it has garnered more response in the local newspaper than anything the paper has reported in recent memory --and frankly, the Sacramento Bee has been doing a bang-up job uncovering all sorts of graft, waste and corruption in state government. Does this story resonate at the national level? Here's the deal:
A California couple has filed a lawsuit seeking relief from their next-door neighbor's second-hand cigarette smoke.
Richard and Donna Ganguet were the first to move into a gated community for people age 55 and older. That was 2006. Today, they claim the cigar and cigarette smoke wafts into their yard from the property of neighbor has caused an intolerable situation.
They've tried dispersing the smoke, first with a small fan (which didn't work) and then by renting an industrial fan (which was noisy, and they didn't want to disturb other neighbors). They say they no longer sit on their patio and try to sandwich in swims in the side-yard lap pool between their neighbors' smoking sessions.
The neighbor is Florence Solone. Her son, his sister and brother-in-law all live with Mrs. Solone and they smoke outdoors because, "My mother doesn't allow smoking in the house."
He also says he didn't know the smoke was a problem until his mother learned of the lawsuit, which was filed last month.
The attorney for the Ganguets says they wanted to resolve the issue without confrontation but they were unable to reach Mrs. Salone by telephone or letter.
The Ganguets said they rarely see Mrs. Solone and believe their telephone calls to her house were screened. They followed up with letters, but said they received no response --that is, until they filed the lawsuit.
The attorney for Mrs. Solone says the issue is a trivial one that should be resolved by neighbors talking with each other, not with a lawsuit in county court.
The Solones say they want to be cooperative but they felt intimidated by the letters the Ganguets wrote because the letters threatened a lawsuit.
The Ganguets claim they considered selling their house and moving rather than filing a lawsuit, but they believe the neighbor's smoke, which they said settles like a fog in their yard, would make a sale difficult.
That's the gist of the story between the two neighbors. The Sacramento Bee has additional useful background info:
Disputes between neighbors over secondhand smoke are increasingly making their way into courtrooms and city council chambers.With smoking banned in workplaces, restaurants and bars, Californians are less willing to tolerate the smell of smoke in their houses or backyards, said Robin Salsburg, a staff attorney with the Oakland-based Public Health Institute's Public Health Law and Policy program.Nearly 87 percent of California residents are nonsmokers, she said."The social norm is changing faster than I can blink," said Serena Chen, regional director of policy and tobacco control for the American Lung Association in Emeryville. In 2006, she helped persuade the East Bay city of Dublin to define secondhand smoke as a nuisance in its city code.The majority of litigation related to secondhand smoke involves apartments and condominiums with shared walls. But Chen said the Dublin City Council's action was prompted by a woman living in a single-family home whose health was compromised by smoke drifting from her neighbor's yard.
Several contradictions cry out for comment
We have, first of all, a woman who doesn't allow smoking in her own house. Yet, the smoke ends up in someone else's house. One wonders if it ever occurred to her that other people might not want the smoke from her house at their house.
This is a retirement community, 55 and over. We don't know how old Mrs. Solone is, but she's putting up her son, a daughter and her husband. I presume they're under 55. Some communities are okay with such arrangements, others have restrictions. When I inquired, the management said it couldn't comment because of the lawsuit.
There's a common legal understanding on the matter of civil liberties: All rights are bracketed by all other rights, or as Oliver Wendell Holmes famously said, "The right to swing my fist ends where the other man's nose begins."
So, does your right as a homeowner end where the neighbors are significantly impacted?
What are the rights of each neighbor here? The Solone siblings are told by their mother they have to smoke outside; that's her right, it's her home. And the siblings have a right to use their mom's backyard; it's her home. Shouldn't her neighbors, the Ganguets, be allowed to make the same choice, in their yard, and in their house? Drifting smoke doesn't know it's supposed to stay outside.
Consider the countless potential annoyances of an inconsiderate neighbor: The barking dog; loud parties; cranking up the Harley at 5am each morning; loud machinery running at midnight, the blaring stereo system.
No one says the dog can't bark or the partiers can't party, but when magnitude and frequency increase to the point where there is no respite, what is your recourse?
Most of us would probably go to the neighbor's house and politely make the obvious request. That raises a question for the Ganguets: If you're able to make phone calls and write letters, why didn't you go around the corner and knock on the door? We have no answer to this question. It's odd that no one even thought to ask, or mention whether the couple even attempted to knock on the neighbor's door.
The responses --over 600 on the newspaper's website-- are all over the board. Like a previous matter involve a radio station's water-drinking contest (which ended in a fatality) some of the reaction seems driven by anger over frivolous lawsuits and ridiculous settlements. Comments like:
--Is the sun too bright as well?--Next people will be suing over Back yard bar-ba-que smoke, or heck just for not being invited to the house--Some people just aren't happy unless they control everyone and everything they do.--Are you serious? This is the most ridiculous thing i have ever heard. THIS IS SUPPOSED TO BE A FREE COUNRTY!!!!! Smoking is 100% LEGAL... What are you going to complain about next? I hope they sue you for harassment!!!!!!
In other words, too damned bad if you don't like the cigarette smoke, it's a free country and I'll do whatever I damn well please.
Is anger at the couple's efforts driven by a reaction to the way smokers have been treated in this country? Never mind second-hand smoke; these people have become second-hand citizens. They're targeted for taxes by politicians who know they can take advantage of a marginalized segment of society. They look almost like some kind of guilty party every time you see clustered and smoking in front of an office building. I'm not defending the habit, or even smokers, but if you kick a dog enough times, sooner or later he's going to bite you. It almost feels like that's the sentiment in this reader's comment:
Get a grip people. Cigarette smoking increases your risk of lung cancer.. it doesn't cause it. Just like flying 7 days a week would increase your risk of being in a airplane accident. I wonder how many of the soldiers who fight for our freedoms smoke. Would hate to think they'd risk their life for our rights and then be sue cuz they light up.
What am I missing here? Is this a frivolous lawsuit, or do you think the couple has a right to file? Or should they have knocked on the neighbor's door and made a reasonable request?
Is the neighbor simply oblivious to the fact that other people might not want in their house what she clearly doesn't want in her own house, the cigarette smoke? Or is the neighbor an example of what many of us think is all too common today: An entitlement attitude that says I can do what I want and I don't care how it affects anyone else?
How do you solve this problem if you are the Gaugets? Mrs. Solone? Maybe you've been in this position (whether it involved cigarette smoke or something else). One reader had an amusing solution:
I had a problem a few years ago with heavy smoking neighbors. No amount of pleading would get them to take their smoke somewhere other than directly into my windows.I fixed the problem by putting an old piece of fish in a bowl, hooking up a small, quiet fan right behind it, and placing the rig right next to the fence. Worked like a charm - inside two days, the neighbors moved their smoking area away from my side and didn't come back to it.Don't get mad, get even.
What do you think? How do you resolve this problem between two neighbors?
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