Adams Stirling PLC


Associations that allow smoking in outdoor common areas are subject to potential liability for nuisance.

Birke v. Oakwood. The Oakwood Apartments banned smoking in all indoor units and indoor common areas, but permitted it in the outdoor common areas (including locations near swimming pools, common BBQs, playgrounds and outdoor dining areas) in order to accommodate residents and guests who smoked.

One of the residents, five year old Melinda Birke, had allergies and asthma. Second-hand smoke exacerbated Melinda’s condition. Melinda’s father requested that Oakwood ban smoking in the outdoor common areas. His request was denied.

The California Court of Appeal ruled that Melinda could continue her nuisance claim against Oakwood because Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and her complaint properly stated that:

  • Oakwood’s decision to allow smoking in the outdoor common areas created a condition which was harmful to health or obstructed the free use of the common areas, and which interfered with the comfortable enjoyment of life or property;

  • allowing smoking in the outdoor common areas affected a substantial number of people at the same time;

  • an ordinary person would be reasonably annoyed or disturbed by smoking in the common areas; and

  • the seriousness of the harm caused by second hand smoke outweighed the social utility of allowing smoking in the outdoor common areas.

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Adams Stirling PLC