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.

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