The District’s homeowners can look forward to a bright future of suing one another over the slightest bugaboos in the wake of a case between Capitol Hill neighbors in which one family successfully obtained a court order preventing their neighbor from lighting up a cigarette or a joint in his own home, says Walter Olson, a senior fellow at the libertarian Cato Institute.
DC has been gripped this week by the suit filed by lawyers Brendan and Nessa Coppinger, who claim that their neighbor, Edwin Gray, is harming them and their children with cigarette smoke that seeps between their Fifth Street, Northeast, rowhouses. The Coppingers, according to the Post, moved into their place last September; Gray’s family has been in their house for half a century. But when conversations about the smoking failed, the Coppingers sued Gray in DC Superior Court for $500,000 in damages. The case became news last week when a judge issued a temporary order prohibiting Gray and his family from smoking anything.
Tobacco is unquestionably harmful, but Olson says the feud between the Coppingers and Gray suggests a tipping point in cases involving homeowners’ rights.
“There are good reasons why until very recently in legal history it would have been unthinkable for courts to intervene in most neighbor-smoking situations,” Olson tells Washingtonian via email. “Courts always applied a de minimis standard to nuisance and similar claims.”
In other words, judges tended to dismiss lawsuits filed over cooking smells, dog barks, a few minutes of loud music, or the tantrums of noisy children.
“If you claimed actual harm and thus damages, you had to prove actual harm,” Olson writes. “Mere fear, or statistics based on a one-molecule-might-kill-you theory, wasn’t good enough.”
Cigarette smoke, though, has exceeded its fellow neighborhood scourges. Olson argues the social crusade against tobacco is so uniquely “disapproving and inflexible” that society has implemented a much lower burden of legal proof.
“I don’t think this is the first such ruling, nor will it be the last,” he writes.
But if a person can sue a neighbor over the scent of smoldering tobacco, Olsen suggests there’s nothing holding up lawsuits filed over the use of any item that emits smoke. Fireplaces and grills, for instance, both give off carcinogenic fumes, often in greater volume than cigarette smoke that creeps between under-insulated walls or under a door. The precedent established by the Coppingers’ case could even bleed into DC’s new permission of in-home marijuana consumption.
“It does make you wonder why conservative opponents of marijuana would bother to fight legalization in DC when instead they can let it go through and get rich suing over it,” Olson says.
This is not to say the District’s judicial system will suddenly grind to a halt under a barrage of lawsuits filed over common household objects that involve open flames. But could neighbors start suing each other over smoldering fireplaces or charbroiled meats?
“If courts behaved logically!” Olson writes. “Which, as you know, is a very big if.”