In precedent, court rules smoker must pay damages

This is the first time that the smoker, rather than business that failed to enforce antismoking laws, was found liable for spreading passive smoke.

The Tel Aviv Magistrates Court today set a precedent when it ruled that a person smoking in a public place must pay NIS 1,000 to a person harmed by the smoke. This is the first time that the smoker, rather than business that failed to enforce antismoking laws, was found liable for spreading passive smoke.

The judge wants to send a clear message to smokers. "Beyond the criminal sanctions to which a person is liable for breaking the antismoking laws, he will also be liable to civil sanctions, and the court will order proper compensation for these acts that harm other people's health."

Until two years ago, the Prevention of Smoking Law was in an ash heap. A year ago, the law was amended to impose large fines of thousands of shekels on smokers in public places and on businesses that allowed smoking on their premises.

The complainant in the case, who suffers from chronic asthma, was a member at the Shape gym at Dizengoff Center in Tel Aviv. He claimed that an employee of the gym was smoking in front of the building in violation of the law, and which caused his discomfort and shortness of breath. He added that other employees were also smoking at the entrance to the gym and elsewhere at the mall.

The complainant said that had warned Shape's receptionists more than once that smoking was forbidden, but to no avail. His lawyer also contacted Shape and the adjacent Arcafe cafe, where Shape employees also smoked, but that the habit persisted.

Shape and the employee argued that they scrupulously enforced a no-smoking policy on the premises, but the gym had no authority off premises and was not responsible for what happened there. The gym added that it instructed its employees not to smoke within the confines of Dizengoff Center, but that it could not monitor them.

The judge ruled, "Beyond the issue of punishment (the fine), the complainant had direct cause for a civil suit for the damage from the smoke. Fair compensation should be awarded, without the need to prove harm, in order to deter violators of the law and the public, and in order to instill the clear norm intended by the legislature. We're not talking about a minor matter, but about health, and this matter should be given weight in the compensation verdict."

The judge dismissed the claim against Shape because the smoking occurred off premises where the gym had no authority. For this reason, no responsibility can accrue to the gym because there was no proof that it encouraged its employees to smoke where they did. The judge ruled that the defendant was Dizengoff Center, because of its responsibility as the owner of a public space.

Published by Globes [online], Israel business news - www.globes-online.com - on August 19, 2008

© Copyright of Globes Publisher Itonut (1983) Ltd. 2008

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