Smoking Injury for America?: Maine Supreme Court Makes Business Judgment

Published on: September 24, 2013

A recent Decision out of the Maine Supreme Court illustrates that condominium smoking bans continue to be a legal hot topic.  In 2010, the Sunspray Condominium Association adopted a condominium wide smoking ban, banning smoking in the entirety of the condominium property, including within units.  Presumably this was done by a Declaration Amendment, however the Court record is unclear on this point.  As an aside, MEEB recommends that if a smoking ban extends within units, it should be done by declaration amendment to provide a better legal basis for enforceability.   

The lawsuit was started by one of the unit owners, whose name is Vitorino America, who sued the condominium association for failing to effectively enforce the smoking ban.  America alleged that he “could not enter or leave his unit without passing the exhaust of a unit in which tobacco is being smoked in violation of the ban” and that “the Board, despite having received numerous reports of violations” repeatedly failed to take action to enforce the ban”. 

The Maine Supreme Court upheld the Trial Court’s dismissal of the ban on various grounds.  First it noted that America did not allege any individual harm or injury from the smoke.  In response to efforts to dismiss his case, America claimed that while he had not alleged any particular injury, he claimed that “cigarette smoke is universally understood to be a toxic and carcinogenic substance” and therefore his allegations that he was exposed to second hand smoke describe an injury sufficient to withstand a motion to dismiss.  The Court disagreed, holding that he must state or identify a particularized physical injury or illness caused by the exposure to the smoking.  His mere exposure to second hand smoke was insufficient to state a cause of action for individual harm.  

With respect to the adequacy of the Condominium Association’s enforcement of the smoking ban, the Court relied upon the Business Judgment rule holding: “the business judgment rule provides that business decisions made by the directors [of a condominium] are not subject to judicial review unless they are the result of fraud or bad faith”…”the rationale for the rule is that it falls outside the proper judicial domain to inquire and second guess the prudence of particular business decisions honestly reached by those entrusted with the authority to determine what course of action best advances the well-being of the enterprise”.  The Court went on to note that disagreement about the method or manner of enforcement is not bad faith, but that bad faith “imports a dishonest purpose and implies wrongdoing or some motive of self-interest”.  The Court further explained that while no response might have been tantamount to bad faith, insufficient speed or vigor in responding to complaints does not survive the application of the business judgment rule.       

The Court’s focus on the lack of a cognizable injury resulting from exposure to second hand smoke and detailed analysis and application of the business judgment rule to alleged selective and/or inadequate  enforcement of smoking bans, provides useful insight and persuasive authority for condominiums, attorneys and insurers addressing smoking litigation, which undoubtedly will continue to be a hot button issue throughout America for years to come.   The case, America v. Sunspray Condominium Association,  61 A.3d 1249 (Me. 2103) can be accessed at the following link.