Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: tflynn@clarkstonlegal.com

Thursday, August 17, 2017

Cancer Survivor Sues Apartment Complex Over Second-Hand Smoke

Phyllis Davis is an asthmatic cancer survivor who has many other serious health conditions. She filed a lawsuit last month in federal court claiming that the second-hand cigarette smoke from a neighbor's apartment is making her sick.

The lawsuit, naming the owners of the Farmington Hills apartment complex as defendants, was filed in the United States District Court for the Eastern District of Michigan. Prior to filing the suit, Davis' lawyer sought to have the apartment complex do something about eliminating all second hand smoke from the facility.

In her suit, Davis alleges violation of both federal [Fair Housing Act] and state law [Persons with Disability Housing Act]. Davis says she suffers from both "chemical sensitivity disorder" and "environmental illness"; she says these co-occurring conditions have rendered her disabled.

For her basic theory of the case, Ms. Davis alleges that the connected units of the complex have a shared ventilation system. She says her adjacent neighbors smoke on a regular basis causing "hazardous, toxic, carcinogenic and irritating gases" to enter her apartment unit through the shared ventilation system.

In addition to violations of federal and state housing laws, the complaint advances a breach of covenant theory against the apartment complex. Davis claims that permitting smoking increases the cost of insurance that the tenants have to secure. Also, she claims that smoking violates the covenant to maintain a safe, clean and sanitary condition for all apartment units.

Smoking is legal. So it will be interesting to see how the defendants respond to this litigation. Plaintiff seeks injunctive relief [no more smoking in the units] and money damages.

If a tenant, albeit an ill tenant, can enjoin a property owner from allowing legal activities on their property, does that interfere with the owners use and enjoyment of private property? If this lawsuit survives a motion for summary judgment and results in relief for the plaintiff, other potential plaintiffs could be encouraged to file their grievances against property owners.

Tenants have been suing landlords for decades for a wide-variety of reasons. This case, however, is particularly compelling due to the fragile health of the tenant.

We here at the Law Blogger can see a medical marijuana version of this case coming down the pipe [forgive the pun] at some point. So we will monitor the procedure in the case, paying particularly close attention to the summary judgment break point.

Post #603
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Friday, August 4, 2017

Teenage Assisted Suicide Texter Sentenced to Jail

Photo courtesy of the NYT
We've been tracking this sad but interesting case for over a year. The case involves a series of texts [literally thousands] a teenager sent to her friend who was contemplating suicide; the decedent was on-the-fence, but the young girl's texts put him over the edge.

Michelle Carter was sentenced to 15-month county jail term yesterday in Massachusetts for involuntary manslaughter of her friend, Conrad Roy. In June, she was convicted following a bench trial.

Ms. Carter was found to be "virtually present" when Roy committed suicide through carbon monoxide poisoning. She encouraged him -some would say badgered him- to complete the act by sending a series of text messages to his cell phone.

Last year, her defense lawyer moved to quash the indictment; this maneuver went all the way to the Massachusetts Superior Court. The High Court made the following ruling:
It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life. These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the virtually present defendant embarked — captured and preserved through her text messages — that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own. On the specific facts of this case, there was sufficient evidence to support a probable cause finding that the defendant’s command to the victim in the final moments of his life to follow through on his suicide attempt was a direct, causal link to his death.
Rather than take the matter before a jury, Ms. Carter's lawyers opted for a bench trial; a trial where the judge makes all the findings of fact.

Of course, her conviction and sentence will be appealed. Carter's lawyers assert that the lack of a state law banning assisted suicide and the First Amendment to the U. S. Constitution form the basis of their appeal.

Prosecutors sought a lengthily prison term. They asserted that Carter wanted the attention that she thought would come from being the grieving girlfriend.

Some legal experts applaud the relatively light sentence, pointing to the teen aged angst and drama constantly swirling about the Internet. This was a social media crime involving two very young and emotionally challenged individuals.

Both victim and perpetrator struggled with mental illness in this case. The judge apparently sentenced Carter to local confinement -rather than to the state penitentiary- in order for her to be close to her family support network.

One the one hand, Carter was very far away from the decedent on the night he took his own life. On the other hand, when he got out of his truck during the act, texting Carter all the while, she called him and talked him back into the truck.

We will let you know if Carter's appeal gets any traction. What a sad case.

Post #602
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