I regularly see civil cases where, when one person is harmed, either directly or indirectly by another (for example, builders putting asbestos in a house, lead in pipes, etc), they are able to bring a tort civil case against the person causing the harm, to sue for damages:


This is because, chemically, asbestos causes cancer, and lead, poisoning.

There can even be lawsuits against offensive odours:


Putting the two types of cases together, both a chemical harm (EG causing cancer) and an odour, it strikes me smoking meets both criterion. Second hand smoke has clearly been documented as harmful, and certainly does smell:


Which does mean the harm is foreseeable by a smoker who continues to smoke.

And whilst I'm aware tobacco companies have been sued for selling tobacco, they're not the ones actually burning it.

Which raises my question, could non-smokers, who either get directly or indirectly harmed by smoke, successfully sue smokers? Why isn't this a more common occurrence given the harm of smoke to others?

(Country is unimportant, but I'd be interested to see if it's possible in western and European countries.)

  • 2
    Can you sue your neighbour for using a coal fired heater? Natural gas for cooking? Can you sue a motorist for using a hydrocarbon in their engine? Can you sue anyone for producing any pollution that causes you harm or distress? Its the same question, just with different things inserted into the placeholder.
    – user4210
    Mar 22 '19 at 2:40
  • The CDC link works against the premise here. "You can take steps to protect yourself and your family from secondhand smoke, such as making your home and vehicles smokefree." suggests (at least part of) responsibility lies with those who choose to continue to be exposed. Not right or ethical, maybe, but that's what it says. Mar 22 '19 at 10:56
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    That statement is pretty clearly addressed to the smoker causing a harm which needs be protected against. It definitely doesn't put the onus of protection on the non-smoker to ensure their environment is smokefree - especially when they are e.g. a child!
    – Nij
    Mar 22 '19 at 22:52
  • @Moo Does a natural gas cooker give me lung cancer over a long term period of exposure? (I'd also argue, if it's contained to within their house, then it'd be difficult to argue I'm being directly exposed to it). In terms of vehicular pollution, identifying a specific individual wouldn't be possible, but if one lived with a smoker, either same house or nearby, you would have a singular attributable source.
    – SSight3
    Mar 25 '19 at 13:17

One of the biggest problems here is in proof of injury attributable to an individual...

With asbestos, you can prove that direct exposure in a certain instance caused a long-term harm. Just because you were around asbestos doesn't mean you get lung cancer, so if you don't actually suffer any harm (or any harm yet), you won't get awarded damages.

Similarly with lead, you have to prove both the exposure, the entity which exposed you to it, and harm that you suffered. Just being around a lead pipe or paint doesn't mean you get damages, you need to have suffered harm.

The problem with second-hand smoke is that you can be exposed to it from many different sources. Any problems you have (lung cancer) would need to be proven as a direct consequence of one specific (or prolonged) exposure. I could see this working if a non-smoking spouse developed cancer from a smoking spouse being exposed to it for years, but you can't just say "I walked by Joe Camel in the street while he was smoking now I have cancer and it is his fault".

So the issue becomes who is responsible for your damages. You can't narrow it down to one smoker (or even cigarette smoke, as lung cancer can develop from other sources), so just proving that your cause-effect is directly related to smoke will be difficult. After that you can't say one single person caused it (unless they forcefully locked you in a room and chain-smoked for a year). So who do you sue? All of smoking society?

You might just as well sue God for putting those people on earth, really the only recourse you would have is to sue the tobacco companies, the individual smokers are not going to be held liable as a group.

  • I would presume if one lived in close proximity to a smoking family that had been there years and years, which would constitute majority exposure, then it would be easily attributable to a source (as if someone had burnt something toxic in their backyard for years and years). Proving harm I thought was established in the endless studies showing second hand smoke causes harm. Even if it doesn't cause physical harm, the thought of being harmed in the long term surely constitutes some sort of emotional distress?
    – SSight3
    Mar 25 '19 at 13:15
  • @SSight3 Emotional distress is something that is difficult to sue for. Just being upset that the world has smokers that may be affecting you isn't usually enough. You'll need to show that you had to attend therapy, that you had nervous breakdowns that lead to a loss of income/social life, etc. When I say "proving harm" yes, case studies show that it can harm you, but unless you have a diagnosis, you can't say "well study X shows this harms me, but I don't have any actual harm" and still claim physical harm... There is a "study" out there to support just about any conclusion now-days.
    – Ron Beyer
    Mar 25 '19 at 14:15

Anyone can sue anyone for anything. But this is very unlikely to work where smoking is legal. If legislatures wanted to make people liable for harm that smoking causes through second hand smoke, they could do so. But there is no liability for killing someone with legal blows.

The law permits an employer to fire someone. That might result in awful things happening to them. But you can't sue your employer for those awful things happening to you because they are allowed to fire you.

The suits against tobacco companies didn't just say those companies did something perfectly lawful that happened to cause harm. They alleged that the tobacco companies lied about the health risks of their products in order to sell more of them. That's fraud.

Neither of your analogies is relevant. The asbestos lawsuits vary a bit, but most of them involve cases where employers knew (or should have suspected) that their employees would be exposed to asbestos and failed to provide appropriate protective gear required by law. In other words, legislatures chose to implement laws to protect people from asbestos exposure and the employers didn't follow those laws. It's unreasonable to expect an employee to identify the asbestos.

The porta potty example involves a case where someone was informed that something unusual that they were doing caused unusual harm to others and who failed to correct the issue even after they had specific complaints. If you were particularly susceptible to cigarette smoke (say due to allergy) and I kept smoking next door to you knowing that I was irritating your specific allergies, you might have a case.

By the way, legislatures have been addressing this issue with specific laws, which is the right way to address it if you wish to do so. Many public places ban cigarette use. There are laws about smoking around children and so on. But you don't want to make public policy decisions in courts, they're ill suited for it.

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