An appeals court rules that a nuisance lawsuit brought against an apartment complex may proceed.
Wired PR News.com – A lawsuit filed against an apartment complex in California has been determined by a state court of appeals to be eligible for continuation. As reported by Andrews Publications, the 2nd District Court of Appeals found that Melinda Birke, plaintiff in the public nuisance case, presented sufficient evidence to show there was a legal basis for her claim. The management company of the Complex, Oakwood Worldwide previously demurred the claim that they failed to keep their premises reasonably safe by not banning smoking in certain areas. Demurrer is the term for asserting that a legal basis does not exist for a claim regardless of whether alleged facts hold true.
Birke, who was five years old at the time of incident, alleged in the lawsuit that the apartment complex’s refusal to ban smoking in outdoor common areas served as a public nuisance. Birke suffers from allergies and asthma, which were reportedly exacerbated by the second hand smoke.
The case is Birke v. Oakwood Worldwide et al., No. B203093, 2009 WL 58105 (Cal. Ct. App., 2d Dist., Div. 7 Jan. 12, 2009).