09:22 AM CDT on Wednesday, September 30, 2009
By SCOTT FARWELL / The Dallas Morning News
In an age when smoking has been outlawed in most public places – government buildings, bars and pool halls – a person's home is one of the few places you can puff in peace.
JOHN F. RHODES
JOHN F. RHODES / DMN
Cary Daniel and her mother Chris Daniel no longer live in the townhome, and said they need to wear respirators and goggles when they return to the townhome to retreive their belongings.
A Dallas woman has filed a lawsuit seeking six figures from a former neighbor and landlord for damage she says was caused by cigarette smoke wafting through adjoining walls of her high-end townhome.
"Smoking is not a right, it's a privilege," said Chris Daniel, a retired nurse. "I'm sorry that people smoke. I think it's foolish, but when it comes into my house and hurts my health and my daughter's health and our belongings, it's a different issue."
The case is being watched by townhouse industry groups across the area.
A manager and attorney for Estancia Townhomes, a 52-building community near Prestonwood Country Club in North Dallas, said it's unlikely the Daniels sustained any smoke damage. There is a solid, two-hour fire wall from the foundation to the roof between each of the homes.
And even if some smell did seep through, the Daniels renewed their lease at Estancia – where smoking is permitted – six months after they say the problem began.
"Why do people file lawsuits?" asked Ginger Tye, an attorney representing the property managers and owners. "They're asking for money damages."
The next-door smoker, Rebecca Williams, declined comment.
Chris Daniel and her daughter, Cary, say in the lawsuit that a construction defect is allowing smoke to migrate between the units.
After a year of stinging eyes, breathing difficulty and sinus pain, they moved out of Estancia and into the Homewood Suites in Addison. Last week, movers wearing surgical masks loaded trucks with their belongings.
The Daniels said furniture will need to be reupholstered, artwork restored and closets full of clothing dry cleaned. The bills are still piling up.
"There's nothing in our home that was ready made. I picked out fabrics, everything was custom made and everything was spotless," said Chris Daniel.
"It's not like our worldly goods are the most important things in our life, but you know what? I don't expect them to be damaged."
Some multifamily communities have followed the lead of hotels and car-rental companies – designating nonsmoking rooms or buildings. The Glass House, a 21-story high-rise in Dallas' Uptown, markets itself as a smoke-free property.
Kathy Carlton, director of government affairs for the Apartment Association of Greater Dallas, said she's never heard of a case such as the one filed by the Daniels.
She said most people who are highly sensitive to cigarette smoke don't move into a community or a building where it's allowed.
"Generally, this stuff is the property owners' prerogative, and people either live by the rules or move on down the street," Carlton said.
"If you have a pet, you look for a place that takes pets. If you hate pets, you look for a place that doesn't allow them. People have choices."
The Daniels said the freedom to choose cuts both ways.
Yes, people may be entitled to smoke in their home – but others are equally entitled to live in a clean and healthy environment.
The right to swing your fist, they said, ends when it meets my nose.
"This lease says I have a right to a habitable place, this lease says I have a right to quiet enjoyment, this lease says I have a right to safe living," said Chris Daniel, referring to court documents.
"And I did have that ... until someone moved in who did not care about her neighbor."
The Daniels lived at Estancia for four years. Today, after a final walkthrough of their home with an attorney and managers, they will hand over the keys.
Nicole Lott, property director at Estancia, said it's been a long year of acrimony.
Managers replaced air filters repeatedly, installed sealant-type electrical plates and – at the Daniels' request – used an industrial-grade roofing sealant to caulk pipes under their kitchen cabinet.
When that didn't work, managers tried to negotiate a move for both tenants within the community.
Williams, the smoker, finally moved to another unit in June after a judge issued a temporary restraining order forbidding her from lighting up in her home.
"We've done more for these people than we've ever done for anyone else," Lott said. "I don't think it's possible to satisfy them."
Chris Daniel also filed a complaint under the Texas Fair Housing Act, alleging that her sensitivity to cigarette smoke qualifies her for protection set aside for people with disabilities.
The complaint is being reviewed by Dallas' Fair Housing Office.
First Assistant City Attorney Chris Bowers said a garden-variety reaction to cigarette smoke – puffy eyes, runny nose, coughing – would probably not meet the standard set by the law, a severe limitation of a major life activity.
"Not just anybody will be able to say smoking has that effect, and that's one of the things our Fair Housing Office will investigate," he said.
"It's safe to say most people do not suffer the degree of impairment this person alleges from cigarette smoke."
Chris Daniel has been treated by an allergist and an internist, according to court records, and was prescribed two inhalers.
Dr. Barbara Stark Baxter, a clinical associate professor at UT Southwestern Medical Center, wrote that Daniels "qualifies as disabled under the Texas Fair Housing Act and the Americans with Disabilities Act."
Her attorney, John Clark V, said his clients were essentially driven from their home by cigarette smoke.
He illustrated the case this way:
"It was like living life in an ashtray you can never clean."