Massachusetts - jury rejects condo owner 's lawsuit that realtor did not inform that neighbor smoked..

April 5, 2010 - Real estate brokers in Massachusetts heaved a collective sigh of relief recently. A Suffolk County, Maassachusetts jury rejected a Boston condominium owner's lawsuit in which she contended that tobacco fumes from a downstairs neighbor amounted to a health hazard, and that her agent knew the neighbor smoked but hid that information from her.

The plaintiff in the suit, Alyssa Burrage, claimed that tobacco fumes from the condo unit beneath the one she purchased in Boston's South End for more than $400,000 in 2006 aggravated her asthma. She filed claims against the owner of the downstairs unit and his roommate, the condominium trustees, her real estate agent and the brokerage firm that employed him.

With the other defendants settling out of court the day before the trial, the agent, Joseph DeAngelo, and the brokerage, Gibson Sotheby's International Realty, were left as the sole respondents, defended by Jay S. Gregory, a shareholder in LeClairRyan's Boston office who focuses his practice on construction defect litigation and the defense of malpractice actions brought against professionals and real estate brokers. After deliberating for less than an hour, the 14-member jury found for DeAngelo and Gibson Sotheby's.


"What really piqued everyone's interest in this case was the idea of the condominium owner seeking, in effect, to exert control over somebody else's lawful behavior (smoking) in their own residence," Gregory explained. "The plaintiff asked the court to take judicial notice of the dangers of secondhand smoke and the U.S. Surgeon General's conclusions regarding exposure to secondhand smoke. All the defendants involved objected to the request for judicial notice. The plaintiff's team was looking for a per se argument that, if successful, would have changed things for plaintiffs across the Commonwealth. They were trying to position the presence of a smoker in nearby proximity as something requiring automatic disclosure, effectively creating a new burden for real estate agents."

Reference:
Jury Reaches Quick Verdict in Favor of Real Estate Broker in Secondhand Smoke Suit
LeClairRyan attorney successfully defends against 'failure to disclose' charge, SOURCE LeClairRyan, PR Newswire, 3/30/2010.