Utah Couple Sue Neighbor For Smoking
THE ASSOCIATED PRESS -- A Centerville couple is suing their downstairs neighbor for lighting up his daily cigarette, complaining the smell wafting through the building was unbearable.

Legal experts say the lawsuit, filed by Matthew and Amanda Parrish in 2nd District Court, is the first challenging the right of people to smoke in their own homes.

The Parrishes say every morning since they moved in last October, the cigarette smell has wafted through their condominium in the Cedar Springs complex.

"It was really, really heavy in the morning," said Amanda Parrish. "We experienced it on a daily basis. My eyes would water and I would cough."

The couple said they tried to work out the problem with their neighbor, Douglas MacFarlane, sought help from the condo association, and tried to use air filters, but the smoke kept coming, so they sued MacFarlane and the condo association.

The couple is basing their lawsuit on a 1996 amendment to Utah's nuisance laws that included "tobacco smoke that drifts into any residential unit a person rents, leases or owns" more than once during a two-week period.

MacFarlane, who said he has smoked for 30 years, considers the suit harassment. "You've got the right to do what you want to do within your unit as long as it's legal," he said.

MacFarlane said he agreed to only smoke on his balcony, but the couple wasn't satisfied. Since the suit was filed, MacFarlane has been served an eviction notice by the unit-owner he rents from. "It's totally screwed up my life," he said. "I don't have the money to fight this."

Brigham Young University law professor David Thomas, who specializes in nuisance suits, said precedent favors smokers.

"The [Parrishes] have to show that the defendant made an unreasonable use of the property," Thomas said. "Smoking on their property is not traditionally construed as unreasonable use."

Dan Cracraft of the advocacy group Freedom of Choice, which plans to support MacFarlane, said Utah smokers are tired of being pushed around.

"If this guy can be sued for smoking, other people can be sued for having barbecues or having cologne," he said.

Environmental Protection Agency standards list cigarette smoke as a group-A carcinogen with no acceptable levels.

Source: Salt Lake Tribune, Wednesday, March 31, 1999: Online