MIELNIK, Andy, SMU Dedman School of Law, “There Goes the Neighborhood - Using Private Nuisance to Deal With Smokers” Abstract A home is where the heart lives - but what about the lungs? The home is considered a refuge for most; a refuge from the daily grind, from people, from annoyances, and from external dangers. But what happens to a refuge that is invaded by a microscopic mass which emits a terrible odor, leaves a filthy residue, and has killed thousands each year? Simple - it stops being a home. As people start moving into multi-unit housing, conflicts between smoking and non-smoking neighbors will escalate. This paper addresses the smoking problems effecting non-smoking neighbors - particularly individuals with extra-sensitive vulnerabilities to smoke. By utilizing legal theories both in tort and property, an attorney can successfully protect non-smoking residents. Tobacco smoke has a lasting effect beyond the initial puff. If you have ever had to stay in a hotel room for smokers, I'm sure you could still feel the presence of smoke in the room. The curtains smell, the carpet is dingy, the walls are filmy, and the air is thick. For most, this is an annoyance they can bare for a night or two and move on to fresher air. For others, this can be an ongoing hell if they so happen to live next to neighbors that smoke. As more and more cities pass ordinances banning smoking in public places, bars and even outdoors[1], smokers are being forced to kick the habit or consume their toxin at home. The first part of this paper explains the rarely used "smoker's battery." The second part of the paper looks into the old common law Eggshell Skull Rule and its applicability to the ultra-sensitive non-smoker. Using the principles established in battery and the Eggshell Skull Rule, the third section will analyze the present and possible future use of private nuisance claims involving tobacco smoke. The paper will also parallel the ideas established in private nuisance with that of a prisoner's right to a smoke-free environment. The final portion of the paper will focus on current case law and legislation that specifically addresses the use of a private nuisance action to combat a neighbor's tobacco smoke. Smoker's Battery - An Old Friend Re-visited According to the Restatement (Second) of Torts: An actor is subject to liability to another for battery if a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. An offensive contact with the person of the other directly or indirectly results.[2] Therefore, for a plaintiff to satisfy the elements of battery at trial, he will need to prove that the defendant intended to "cause a harmful or offensive contact" and that contact resulted. In addition to direct physical contact, a person can still be held liable for battery if they offensively use an object or chattel to contact a person. In the infamous Fisher v. Carrousel Motor Hotel case, the court held that a person could be offensively battered, even if that person is "offensively contacted" via a plate.[3] So, the direct contact from the particulates of tobacco smoke can constitute an object subject to an action for battery. If a smoker purposefully and intentionally blows those particulates on a non-smoker, the non-smoker can theoretically file a battery cause of action against the tortfeaser, depending on the surrounding circumstances of the incident. The case recognizing a non-smoker's right for a battery cause of action was in Leichtman v. WLW Jacor Communications. The plaintiff in the case was a prominent antismoking advocate who agreed to appear on the defendant's radio talk show, to discuss the harmful effects of smoking.[4] While on the show, one of the talk-show hosts purposely lit a cigar and deliberately blew smoke in the face of the plaintiff.[5] The Court of Appeals of Ohio set new precedent by recognizing the right of a non-smoker to bring a battery cause of action. From the testimony at trial, it was determined that the talk-show hosts, deliberately and intentionally blew smoke in the face of the plaintiff "for the purpose of causing physical discomfort, humiliation and distress."[6] Viewing the facts and the legal assessment of the court, it seems as if non-smokers might have a feasible cause of action against a smoker who intends to harm. However, as the next case points out, a battery cause of action is not absolute. In Hennly, a newly hired vice-president was stationed at an office next to the plaintiff who happened to be sensitive to tobacco smoke.[7] Since the work environment was not "smoke-free," the vice-president would smoke his pipe at his desk during the workday.[8] Knowing that the plaintiff was especially sensitive to tobacco smoke, the vice-president would continuously and deliberately blow smoke in her work area.[9] As a result, she became physically and emotionally ill and had to quit; she then filed an action claiming damages under the Worker's Compensation Act ("Act") and claimed that her illness fell under the Georgia Equal Employment for the Handicapped Code.[10] Reversing the Appeals Court, the Georgia Supreme Court held that the plaintiff had no cause of action because the exposure to smoke occurred in a smoking-work environment.[11] Even though Hennly denied the plaintiff's injury claim under the Act, the court reasoned that the plaintiff was aware and consented to the smoke induced workplace.[12] The dissent noted, however, that the battery and duress claims should have been litigated since there was evidence of the defendant "blowing his pipe smoke directly in her face."[13] Therefore, unlike Leichtman, the plaintiff was well aware of the smoking conditions and agreed to work in such conditions. If a non-smoker knowingly and purposefully consents to work in a smoking environment or sits in the smoking section of a restaurant, courts will not allow a smoker's battery claim under those circumstances. This fact pattern is distinguishable from a resident who happens to be neighbors with a smoker. For the most part, a tenant is not aware of present or future neighbors who may smoke in the vicinity of their dwelling. Absent statutory protections or smoking regulations for the building, residents are left to their own vices to protect their right to a smoke-free home. The major hurtle an attorney will face while representing a non-smoking resident will be the issue of intent. While a resident might have sufficient evidence establishing a smoker's knowledge of the intrusion of smoke and harmful effects on their neighbor, courts are reluctant to equate this knowledge with intent. This hurtle establishes the next transition in the paper: The Eggshell Skull Rule. Tobacco Smoke Can Crack an Egg - A Brief Overview of the Eggshell Skull Rule With new tort reform measures being established, attorneys are being hard-pressed to find alternative measures to compensate their wrongfully harmed clients. On the dusty bookshelves of many attorneys across the country are commentary and articles regarding the old common law principle known as the Eggshell Skull Rule. While some may view this doctrine as antiquated and a frivolous means for a cause of action, the expounding ideals of this rule may pump new blood into non-smoker issues - especially in the purview of property rights. Simply stated, the Eggshell Skull Rule "requires that the defendant must take the plaintiff as he finds him...no matter how unlikely, remote or bizarre the harm that results from his act."[14] One of the first cases to define this rule involved two school boys, a playful kick, and a very unusual injury. In Vosburg v. Putney, two boys were being rambunctious in the classroom and were playfully teasing each other.[15] While being teased by the plaintiff, the defendant lightly kicked his friend in the shin before class started.[16] The plaintiff had sustained a previous leg injury before the plaintiff kicked him and, unknown to both boys, there was a pre-existing disease in the plaintiff's leg which the kick aggravated.[17] As a result of the disease and the kick of the defendant, the plaintiff's leg became "lame" and he eventually lost control and function of that leg.[18] While assessing the Plaintiff's claim, the court relied on the common law rule stating that "the wrongdoer is liable for all injures resulting directly from the wrongful act, whether they could or could not have been foreseen by him" (emphasis added).[19] Therefore, the knowledge of the plaintiff's extreme sensitivities or hidden medical defect is irrelevant in determining tort and damages. If a hidden medical defect exists and the actions of the defendant aggravates that defect, the defendant will still be held accountable for his actions, regardless of rare nature of that defect. Though the Vosburg case was rendered in 1891, the principles espoused in that verdict are still relevant today. For example, the Eggshell Skull Rule was validated by the Sixth Circuit Court of Appeals in a negligence action against the government. In Duty v. US Department of Interior, the plaintiff was rear-ended by a man employed by the defendant.[20] Medical testimony revealed that the plaintiff was suffering from spondylolisthesis, abnormal curvature of the spine at the tailbone, before the car wreck.[21] The lower district court held that the plaintiff's injuries were only temporary because the plaintiff already had the ailment before the car wreck, and her future pain and suffering would be a result of the diagnosis and not the car wreck.[22] The Sixth Circuit reversed that determination based on the Egg Shell Skull Rule, holding that "one injured by another's negligence is entitled to recover full compensation for all damages proximately resulting from that negligence."[23] Thus, in a negligence cause of action, if a plaintiff has a pre-existing medical ailment, that fact will not bar them from additional damages for the harm caused by the defendant. The law may be reluctant to give out damages for frivolous lawsuits; however courts are equally reluctant in denying damages to an individual with an obvious injury. The effects of tobacco smoke to an asthmatic or a person with severe respiratory ailments can be debilitating. To satisfy the requirements of the Eggshell Skull Rule, the adverse effects of the tobacco smoke to an extra sensitive non-smoker must amount to an injury. For a recognizable harm, exposure to the harmful agent will usually have to be continuous and long lasting. However, due to the unique circumstances of a resident living next to a smoking neighbor, the resident may be exposed to a continuous stream of tobacco smoke. Unlike in a restaurant or an employment setting, the resident will not have consented to the exposure of cigarette smoke as a condition of their living arrangement. As a result, this truly innocent resident will have a prima facie case under the prevailing principles of the Eggshell Skull Rule. Furthermore, the intent of the smoker will not matter since the resident can utilize the Eggshell Skull Rule in a negligence suit. A Cigarette, a Bad Neighbor, and A Lawsuit - Private Nuisance Utilizing the legal standards applied in smoker's battery and Eggshell Skull Rule, an attorney has a great opportunity to advocate their client's right to a smoke free home environment. Though this fact pattern restricts the cause of action against individuals who suffer severe injury from tobacco smoke, the principles espoused in those actions have led to additional actions including private nuisance, which is the third subject of discussion in this paper. Consider the following fact pattern: A non-smoker moves into a multi-dwelling building after much research and consideration. The dwelling is in a nice area, the amount of space satisfies the needs of the owner, and the price range is feasible. However, there is a major hidden defect that wasn't realized - a neighbor who constantly smokes both inside his room and on his balcony. As a result of this fact, the non-smoker must now keep his doors and windows closed at all times and may have to insulate certain areas of his home to keep tobacco smoke out. If the space was constructed poorly or had a faulty ventilation system, the new resident may have to incur substantial expense to rectify this problem. Furthermore, if the neighbor is a heavy smoker or if there are multiple smokers in that apartment, the non-smoker may not have any course of action, other than a complaint or to move. A private nuisance is an activity which substantially and unreasonably interferes with the plaintiff's use and enjoyment of his land.[24] According to the Restatement of Torts, there are two elements of a private nuisance action that must be satisfied for a plaintiff to prevail at trial.[25] First, the plaintiff must show that "she has an interest in land that has been substantially and unreasonably interfered with." A balancing test between the gravity of the plaintiff's harm and the utility of the defendant's conduct will be utilized in determining the unreasonableness of the interference.[26] The plaintiff must then show that "the defendant behaved in a negligent, abnormally dangerous or in an intentional manner."[27] Once these elements have been satisfied, a private nuisance action will be sustained, resulting in damages or a possible injunction. Since reasonableness can be a difficult standard to identify, a practical case analysis is warranted. In 1888, the Massachusetts Supreme Court addressed the issue of whether a church bell constituted a private nuisance.[28] The plaintiff was an older gentleman who became seriously ill after suffering sunstroke, and was confined to his bed.[29] His residence happened to be across the street from a church which would ring its bells before and after church services.[30] It should be noted that before the sunstroke, the plaintiff never complained of the bell or the church. Due to his condition after the sunstroke, the plaintiff would suffer from seizure-like symptoms every time the bells were rung. The plaintiff addressed the problems with the church; however, the record shows that the church went ahead despite the harm it was causing the plaintiff.[31] In its analysis, the court considered the present harm as well as the physical surrounding area around the church.[32] In its reasonableness determination, the court held that it was not unreasonable for the church to ring its bells - even if they knowingly seemed to cause the plaintiff great harm.[33] The court reasoned the reasonableness test must be an objective standard; thus, the ultra-sensitivity of a plaintiff is irrelevant.[34] Furthermore, the court specifically looked to see if "the annoyance is such as materially to interfere with the ordinary comfort of human existence."[35] A reasonable person, that is a person who is healthy with no major ailments, would not view the occasional ringing of church bells as a nuisance. Though the reaction of the plaintiff is unfortunate, the court determined that allowing the special circumstances of a particular person would be contrary to public policy.[36] If the activity of the defendant determined to be a nuisance in one instance and changes once a new person moves in, the conduct of the defendant would change "from legal to illegal, or illegal to legal, with every change of tenants of an adjacent estate."[37] Therefore, the reasonableness test in determining private nuisance will look to the conduct's suitability to the locality. Though it seems like this interpretation might adversely affect an attorney representing a non-smoker, there are a few distinguishable facts courts will consider. Smoking, unlike the ringing of a church bell, is an annoyance a regular person would view as unreasonable. Even smokers, that choose not to smoke inside their home, would find additional smoke in their dwelling as a nuisance. Additionally, tobacco smoke causes discomfort and physical harm to more people than a ringing church bell. For additional perspective, please consider the facts in the next case. In Thomsen v. Greve, the plaintiff sought an injunction against their neighbor for a private nuisance violation as well as monetary damages for the destruction of their property.[38] The defendant and plaintiff lived in separate houses that were adjacent to each other.[39] During the winter months, the defendants would light their wood-burning stove to keep warm.[40] Because of the close proximity of their homes as well as changing wind directions, the plaintiff's home would get inundated with smoke and odor from the defendant's stove.[41] The plaintiff testified that the smoke would creep into their home and cause them physical illness.[42] Additionally, the plaintiffs also pointed out that the smoke had admitted such a terrible odor, that the plaintiff would have to evacuate from their smoke induced home on a number of occasions.[43] The lower court awarded an injunction requiring the defendants to abate the wood burning, or build a taller smoke staff to keep the smoke away from the plaintiff.[44] However, in upholding the injunction, the Appeals Court also held that the plaintiff was entitled to damages because of the constant smoke damage.[45] The Thomsen court went further stating: "We have no trouble concluding that, at least in our society, to have the use and enjoyment of one's home interfered with by smoke, odor, and similar attacks upon one's senses is a serious harm. The social value of allowing people to enjoy their homes is great, and persons subjected to odor or smoke from a neighbor cannot avoid such harm except by moving. One should not be required to close windows to avoid such harm.[46] Therefore, if a court holds that the smoke from a stove constitutes an actionable private nuisance, a court should apply the same finding to a tobacco smoking nuisance claim. As with many non-smokers, "smokers still cherish their unfettered freedom to smoke in their own homes."[47] However, as seen in Thomsen, the rights an individual may assert at their homestead are not necessarily absolute. The correlative to a right is a duty. Once the right of an individual crosses the threshold of a nuisance, the right loses its absolute status. If an unfettered court holds that the right to keep warm is not an absolute right when subsequent smoke invades the space of another, why should the right to smoke tobacco be absolute if it directly and adversely affects the living space of a neighbor? As seen in Thomsen, the court's ability to restrict the odor[48] and smoke[49] of a neighbor is not a new concept. When does a Prisoner Have Greater Rights Than a Resident? After the United States Supreme Court case of Helling v. McKinney, courts across the country have been recognizing the rights of prisoners to be in a smoke-free environment. Under the Eighth Amendment, prisoners have been successful at preserving their health and well-being in the prison setting. Courts across the country have determined that tobacco smoke constitutes "cruel and unusual" punishment to prisoners because of its adverse health effects on non-smokers. In establishing the analogy between the legal development in prisoner rights and the rights of residents, a look back to the Helling case is needed. William McKinney was an inmate housed with another inmate who smoked five packages of cigarettes every day.[50] After continued requests for a transfer to a non-smoking cell were denied, the inmate filed a pro se civil rights claim against the prison arguing the chemical agents in the tobacco smoke "subjected him to cruel and unusual punishment by jeopardizing his health.[51] After reviewing the inmate's claims, the magistrate trying the case determined that the inmate had no claim. The magistrate based this determination on the fact that the inmate had no evidence proving the medical problems that would result from the exposure to tobacco smoke.[52] Additionally, the magistrate held that remote future injuries does not amount to sufficient evidence to warrant the inmate's claim.[53] The Court of Appeals found otherwise, holding that the inmate had stated a valid cause of action because involuntary exposure to the levels of Environmental Tobacco Smoke (ETS) present in that cell, could endanger one's future health.[54] The court also concluded that "society's attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS violated current standards of decency.[55] In a decisive 8-2 decision, the Supreme Court affirmed the Appeals Court decision agreeing with the conclusion that the ETS exposure could constitute cruel and unusual punishment under the Constitution.[56] Analogizing the injury from tobacco smoke to the exposure of unsanitary living conditions, the Supreme Court expressed that tobacco smoke was contrary to "contemporary standards of decency."[57] Though the original plaintiff in this action was a convicted convict, he was still entitled to living conditions that were decent and humane.[58] The Supreme Court further held that a potential and indistinct future harm is still adequate evidence the inmate can use in establishing the basis for his claim.[59] Consequently, the Supreme Court determined that second-hand smoke IS considered an injury. As such, it is only a matter of time in which private individual will have a similar cause of action due to medical confinement or even house arrest. Even though the Helling case involved an inmate in the same cell as a smoker, courts have been broadly construing the language in that case for prisoners that have been exposed to tobacco smoke in general areas. For example, in Reilly v. Grayson, the Sixth Circuit Court of Appeals decided to broaden a prisoner's right to a smoke-free environment. The inmate in that case was an asthmatic who was detained in an area of the prison that allowed smoking.[60] Even though the prison argued that the Helling case pertained only to smoke exposure in the same prison cell, the Sixth Circuit concluded that the constitutional rights of the inmate had been violated.[61] The court further emphasized that the "same cell" distinction in Helling was not a determinate factor and based its decision on the view that prisoners have "the right to be free from the exposure to second-hand smoke."[62] Harping on the exposure element of tobacco smoke, it is clear that the Sixth Circuit is trying to move away from the rigid "location-of-the-exposure" distinction the defendants relied on. As stated in Steading: "Medical consequences of tobacco smoke do not differ from other medical problems. Prisoners allergic to the components of tobacco smoke, or who can attribute their serious medical conditions to smoke, are entitled to appropriate medical treatment, which may include removal from places where smoke hovers." [63] However, as established in Helling, a medical condition is not needed, so long as there is proof of a future injury. New Statutory Regulation Addressing Smoking Residential Buildings Some states have taken a proactive stance at abating smoking neighbor problems. For example, Utah has implemented statutes which now expressly authorizes condominiums to enact "prohibitions on, or allowance of, smoking tobacco products" in certain areas of their buildings.[64] Under the Utah Condominium Ownership Act, renters are required to comply with all express agreements between the owner and the renter including smoking prohibitions.[65] This provision includes the prohibition of the smoking of tobacco products within residential units and common areas alike. With statutes like these, residents will have an express means of restitution for a neighbor who decides to violate these smoking prohibitions. Another Utah law specifically addresses tobacco smoke nuisances. Under Utah nuisance law: "3) A nuisance under this section includes tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit and this smoke: a) drifts in more than once in each of two or more consecutive seven-day periods; and b) creates any of the conditions under Subsection (1)[66] Under this statute, tobacco smoke is specifically defined and targeted as an actionable private nuisance. Therefore, revisiting the hypothetical posed in the private nuisance section, a weary resident would have sufficient cause of action under this law. However, until more states adopt similar nuisance laws that target tobacco smoke specifically, attorneys must look to the courthouses of America and decipher the trends recent verdicts follow. Looking at common law and future economic trends, it is easy to see that smoking restrictions in a multi-unit building makes sense. A smoking resident will decrease the value of the property and their habit leaves a lasting and damaging effect on the property. "To restore the property smokers occupied to maximum value, property owners or managers have to incur costs associated with repainting, cleaning, replacing carpet and drapery."[67] Additionally, insurance costs to maintain a building that allows smoking is also a burden building owners and residents can avoid through these statutory provisions. For example, a recent study conducted by the United States Fire Administrator determined that the rising fire incidents in the country can be attributed to burning tobacco products. "In 2002 alone, lighted tobacco products caused an estimated 14,450 residential fires, 520 deaths, 1,330 injuries, and $371 million in residential property damage."[68] Conclusion In deciding whether a neighbor's smoking constitutes a private nuisance, attorneys are going to have to satisfy the burdens a private nuisance requires. Moreover, a balancing test between utility of smoking at home and the harm imposed on a neighbor must fall on the side of the non-smoker for any private nuisance cause of action to commence. Though there are a number of other legal means to address this smoking issue, a private nuisance claim is the most efficient cause of action for a non-smoking resident to enact against an inconsiderate smoker. Seemingly a paradox, the massive push to ban public forms of smoking may increase private nuisance incidents across the country. As more and more areas are being restricted from smokers, a smoker's last refuge may be his own home. While non-smokers may not want to infringe on the smoker's rights to smoke in the privacy of his own home, conflicts will arise when tobacco smoke can't be confined to a smoker's apartment. Smoker's battery, Eggshell Skull Rule, and the rights of prisoners have opened the door to successful causes of action against smokers. With the legal principles instilled in these causes of action, attorneys should be able to advocate for the rights of a non-smoking resident. Short of a statutory prohibition on smoking, there is no quick fix to alleviate the conflict between non-smokers and smokers. Though peaceful cohabitation is ideal, it may not be feasible. Noisy neighbors, bad smells, and crime have all been pursued as private nuisance causes of action; therefore, it's only natural that a non-smoker can use private nuisance to protect his property interest and well-being. By expounding private nuisance actions to smokers, the notion of a home sweet home can be a reality for many. ________________________________ [1] Calabasas, California has implemented an antismoking law which prohibits smoking in all public places both indoors and outdoors. This is the toughest non-smoking ban in a US city thus far. John M. Broder, Smoking Ban Takes Effect, Indoors and Out, at http://www.nytimes.com/2006/03/19/19smoke.html?ex=1143781200&en=17d0a108ab9e3a04&ei=5070 (March 19, 2006) [2] Restatement 2d Torts § 18 (1965). [3] Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 628 (Tex. 1967). [4] Leichtman v. WLW Jacor Communications, 92 Ohio App. 3d 232, 234 (Ohio Ct. App. 1994). [5] Id. [6] Id. [7] Hennly v. Richarson, 264 Ga. 355, 355 (Ga. 1994). [8] Id. [9] Id. [10] Id. [11] Id. at 357-58. [12] Id. at 355. [13] Id. at 358. (J. Thomas, dissenting). [14] Maurice R. Dyson, Foundation & Elements of Tort Law 5 (Maurice R. Dyson ed., Dyson Publishing LLC 2005). [15] Vosburg v. Putney, 80 Wis. 523, 527 (Wis. 1891). [16] Id. [17] Id. at 528. [18] Id. at 529. [19] Id. at 530; quoting Brown v. Chicago, M. & S. P. R. Co., 54 Wis. 342 (Wis. 1882). [20] Duty v. U.S. Dept. of Interior, 735 F.2d 1012, 1013 (1984). [21] Id. [22] Id. [23] Id., quoting Field Packing Co. v. Denham, 342 S.W.2d 524, 526 (Ky. 1961). [24] See Dyson at 498. [25] Restatement 2d Torts § 826 (1979). [26] Restatement 2d Torts § 827 (1979). [27] § 826. [28] Rogers v. Elliott, 146 Mass. 349 (1888). [29] Id. at 350. [30] Id. [31] Id. [32] Id. at 350-51. [33] Id. at 353. [34] Id. [35] Id. at 352. [36] Id. [37] Id. [38] Thomsen v. Greve, 550 N.W.2d 49, 49 (Neb. Ct. App. 1996). [39] Id. at 51. [40] Id. at 52. [41] Id. [42] Id. [43] Id. [44] Id. at 53. [45] Id. 57-8. [46] Id. at 55. [47] David B. Ezra, Get Your Ashes out of my Living Room: Controlling Tobacco Smoke in Multi-Unit Residential Housing, 54 Rutgers L. Rev. 135, 137 (2001). [48] See Cross v. Texas Military College, 65 S.W.2d 794 (Tex. Civ. App.-Dallas 1933, writ dism'd w.o.j.) (holding that a barn and hog pig constituted a private nuisance because of the nauseous stenches and odors emanated and blown into the home of the plaintiff). [49] See generally Kepler v. Industrial Disposal Co., 85 N.E.2d 308 (Ohio Ct. App. 1948) (holding that the smoke from the caused by the conduct of the defendant was an actionable nuisance since the smoke would envelop the plaintiff's property). [50] Helling v. McKinney, 509 U.S. 25, 28 (1993). [51] Id. [52] Id. at 28-9. [53] Id. [54] Id.; citing McKinney v. Anderson, 924 F.2d 1500, 1505-07 (CA9 1991). [55] Id. [56] Id. at 30. [57] Id. at 31. [58] Id. at 32. [59] Id. at 33. [60] Reilly v. Grayson, 310 F.3d 519, 520 (6th Cir. 2002). [61] Id. at 520-21. [62] Id. at 521. [63] Quoting Steading v. Thompson, 941 F.2d 498, 500 (7th Cir. 1991), cert. denied, 117 L. Ed. 2d 445, 112 S. Ct. 1206 (1992). [64] Utah Code Ann. 57-8-16 (7)(b) (2000). [65] Utah Code Ann. 57-22-5 (1)(h) (2000). [66] Utah Code Ann. 78-38-1(3) (Supp. 2001). [67] See Ezra at 153. [68] U.S. Fire Administration/National Fire Data Center, Residential Smoking Fires and Casualties, available at http://firesafecigarettes.org//assets/files//USFAsmokingfires.pdf (last visited Mar. 10, 2006).