As a society, we are becoming less and less tolerant of cigarette smoking and the effects that it has on others. Ohio’s Eighth District Court of Appeals considered a case wherein the tenant complained of cigarette smoke coming from the apartment below him which was occupied by the landlord. The tenant complained that the problem was so bad that he had to move out and sued to recover his security deposit back. The landlord counter argued that the problem was not that bad and that the tenant’s moving out was in improper breach of the lease entitling her to keep the security deposit.
The Trial Court granted the landlord summary judgment to the landlord and the tenant appealed. The Eighth District Court of Appeals ruled as follows:
Review of the affidavits attached to appellee’s motion to dismiss, or, in the alternative, motion for summary judgment and appellant’s opposition thereto, reveals the existence of general issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant’s rental unit. In appellee’s affidavit attached to her motion, she stated that the lease did not guarantee or warrant a smoke-free environment. Appellee also asserted that what minimal smoking was carried on in the building occurred in a separate and distinctly isolated portion of the building, which was not in close proximity to the portion occupied by appellant. In appellant’s affidavit attached to his opposition to appellee’s motion, he stated that it was not until the week of December 31, 1991 that cigarette smoke was accumulating and becoming more and more objectionable. Appellant also asserted it was during that week that he began feeling the negative impact the smoke was having on his health. Further, appellant denied being hypersensitive to cigarette smoke.
By construing the evidence in the light most favorable to appellant, as we are required to do, we find that reasonable minds could come to different conclusions concerning whether the condition of appellant’s rental unit, i.e., the smoke, was sufficient to constitute a breach of the covenant of quiet enjoyment or a breach of any of the landlord’s duties contained in R.C. 5321.04. In our opinion, final determination of the instant case should thus be delayed pending further factual development at trial.
Accordingly, the trial court’s decision granting summary judgment in favor of the appellee is reversed and the cause is remanded for further proceedings.
Dworkin v. Paley (1994), 93 Ohio App. 3d 383.
So the Eighth District Court of Appeals found that whether or not the landlord’s smoking was serious enough to be a breach of the landlord’s duties to the tenant was a question of fact that would have to be decided by the jury.