|acetaldehyde (1.4+ mg)||arsenic (500+ ng)||benzo(a)pyrene (.1+ ng)|
|cadmium (1,300+ ng)||crotonaldehyde (.2+ µg)||chromium (1,000+ ng)|
|ethylcarbamate 310+ ng)||formaldehyde (1.6+ µg)||hydrazine (14+ ng)|
|lead (8+ µg)||nickel (2,000+ ng)||radioactive polonium (.2+ Pci)|
Due to cigarettes' inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions (TTS). The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious TTS emissions compared to the chemicals' "speed limits" (official term, "threshold limit values" [TLV's] set in the toxic chemical regulation 29 CFR § 1910.1000, available at your local library). It is due to cigarettes excess quantities that TTS-caused deaths result. Notice the emissions vs the "speed limits" [TLV's]:
|acetaldehyde||3,200 ppm||200.0 ppm|
|acrolein||150 ppm||0.5 ppm|
|ammonia||300 ppm||150.0 ppm|
|carbon monoxide||42,000 ppm||100.0 ppm|
|formaldehyde||30 ppm||5.0 ppm|
|hydrogen cyanide||1,600 ppm||10.0 ppm|
|hydrogen sulfide||40 ppm||20.0 ppm|
|methyl chloride||1,200 ppm||100.0 ppm|
|nitrogen dioxide||250 ppm||5.0 ppm|
The TTS hazard has long been known. The U.S. Supreme Court upheld a total ban on cigarettes, Tennessee's 1897 cigarette ban for health reasons, against tobacco lobby challenge, in the case of Austin v State of Tennessee, 179 US 343; 21 S Ct 132; 45 L Ed 2d 224 (1900). The State of Michigan soon banned deleterious cigarettes.
|Subsequent cases involving injunctions to ban TTS around nonsmokers include Shimp v New Jersey Bell Telephone Co, 145 N J Super 516; 368 A2d 408 (1976) (analysis); Paul Smith v Western Electric Co, 643 SW2d 10 (Mo App, 1982); Lauren Hall v Veterans Administration, EEOC Case No. 054-086-X0097 (Detroit, 5 Sep 1986) (analysis); and Perkins v Ford Motor Co, Case No. 86-633018-CZ (Wayne County Circuit Court, Michigan, 25 Nov 1986) (analysis).
In a public transportation situation, of course, there was no undoubtedly no time to have gotten a court injunction in advance as likely the "ultrahazardous" hazard was unexpected by you (or even in breach of promise or contract, e.g., a nonsmoking reservation); so your case is likely after-the-fact, seeking damages for, inter alia, the "natural and probable consequences," injury or death.
"The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."
Commonwealth v Thompson, 53 Mass 231 (1847) (outdoor smoking ban case, with criminal penalty) State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890) (ban on smoking on public transportation, streetcars) Texas & P R. Co v Stewart, 228 US 357; 33 S Ct 548; 57 L Ed 875 (Texas, 21 April 1913) (passenger injured leaving smoking car) Jones v Eastern Greyhound Lines, Inc, 159 Misc 662; 288 NYS 523 (9 June 1936) (fellow passenger, a smoker, causing injury by smoking on the bus) ("A sign was posted in the front part of the bus which, in substance, stated that there should be no smoking except in the rear seats. The [smoker] began to smoke . . . this annoyed [the victim. One] went to the front part of the bus and complained to the driver [about] the smoking in violation of the posted notice, and he states the driver laughed at him.") Miles v Southeastern Motor Truck Lines, Inc, 295 Ky 156; 173 SW 2d 990 (25 June 1943) (automobile accident involving smoking causing fire thus compounding damage) (See also "Smoking in the car is child abuse, GP Steve Field warns" [BBC, 7 August 2010]). Ralph Nader v Federal Aviation Administration, 142 US App DC 264; 440 F2d 292 (4 March 1971) (smoke-free flights case) National Ass'n of Motor Bus Owners v United States, 370 F Supp 408 (D DC, 31 Jan 1974) (company opposition to ICC enforcement of the right to pure air protecting nonsmokers from second hand TTS) Harriet Brooks v Trans World Airlines and Liberty Mutual Ins Co, 76 SF 257-975 (California Workmen's Compensation Appeals Board, 5 Jan 1977) (flight attendant TTS injury case due to others' ultrahazardous activity of smoking on the job violating the right to "fresh and pure air") Gladieux Food Services, Inc v International Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (Pa, 1 March 1978) (contractor food services employee fired for smoking within short distance of passenger plane then or shortly after its being refueled, potentially endangering other workers and travelers) Ravreby v United Airlines, 293 NW2d 260 (Iowa, 18 June 1980) (one of a number of cases on TTS, and issue of a partial smoking ban) Matter of L.M., 432 A2d 692 (DC App, 4 May 1981) (sustaining conviction for illegal smoking on bus) Diefenthal v Civil Aeronautics Board, 681 F2d 1039 (CA 5, 6 Aug 1982) cert den 459 US 1107; 103 S Ct 732; 74 L Ed 2d 956 (10 Jan 1983) (smoker opposing smoke-free flight, lost case, as smoking ban is valid and constitutional) Action on Smoking and Health v Civil Aeronautics Board, 226 US App DC 57; 699 F2d 1209 (28 Jan 1983) (re action on TTS to secure enforcement of the common law "right to fresh and pure air") Action on Smoking and Health v Civil Aeronautics Board, 230 US App DC 1; 713 F2d 795 (30 June 1983) (re anti-TTS action) Action on Smoking and Health v Civil Aeronautics Board, 233 US App DC 79; 724 F2d 211 (6 Jan 1984) (re anti-TTS action) American Express Travel Related Services v Marco, 611 F Supp 938 (D SD NY, 27 June 1985) (re anti-TTS action) Ricci v American Airlines, 226 NJ Super 377; 544 A2d 428 (14 July 1988) O'Neill v Metropolitan Transit Authority, WL 111529, 143 App Div 2d 739; 533 NYS2d 450 (11 Oct 1988) app dism 74 NY2d 909; 549 NYS2d 957; 549 NE2d 148 (16 Nov 1989) (a ban on railroad passenger smoking was upheld against a smoker challenge, alleging enforcing the law's mandate was unauthorized rulemaking) Eastern Airlines, Inc and GAB v Crittenden and Travelers Ins Co, 17 Fla W D 724; 596 So 2d 112 (11 March 1992) (worker compensation case by flight attendant injured by exposure to passenger TTS) Broin v Philip Morris Cos, Inc, 19 Fla L Weekly D588; 641 So 2d 888 (15 March 1994) (the flight attendants' class action case re TTS injury to workers (stewardesses) due to others' ultrahazardous activity of smoking on the job violating the right to "fresh and pure air") (Amicus Curiae Brief by ASH) Naval-Torres v Northwest Airlines Inc., 159 D. L.R. (4th) 67 (1998) (TTS injury case, involving bodily injury from exposure, in flight, to second-hand smoke. Judge Sharpe of the Ontario Court (General Division) issued a two-part decision: (a) at 74 and 76 stated that injury resulting from second-hand smoke constitutes an accident; and (b) at 73 and 77 rejected passenger's contention that she "is entitled in law to pursue any common law or statutory claims which exist apart from any claims she may have under the Convention," by concluding that "where a claim falls within the reach of the Convention, the Convention is exhaustive of the rights of the plaintiff"), cited in El Al Israel Airlines, Ltd v Tsui Yuan Tseng, US, 119 S Ct 662; 142 L Ed 2d 576 (12 June 1999) Abid M. Husain Estate v Olympic Airways, 110 F Supp 2d 1234 (DC ND Cal, 29 Aug 2000), replaced by 2000 WL 1483203, aff'd ___ F3d ___ (CA 9, 12 Dec 2002); cert ____ US ____; ___ S Ct ___; ___ L Ed 2d ___ (12 March 2003) aff'd ___ US ___; 124 S Ct 1221; ___ L Ed 2d ___) (24 Feb 2004). U.S. District Judge Charles R. Breyer ordered a Greek airline to pay $700,000 for its role in a passenger's asthma-related death aboard a cigarette-smoke filled plane. Judge Breyer said Olympic Airways attendants should have switched the seat of Abid M. Hanson after he complained that nearby smoke was bothering him on the January 1998 flight from Egypt to the United States. As Olympic Airlines was held partially liable, Breyer cited the Warsaw Convention treaty of 1929. (Context and Comment.)
The Supreme Court ruled 24 Feb 2004 that the Defendant Airline is liable for the death as its conduct constituted an "accident" under Article 17 of the Warsaw Convention. The flight attendant's refusal to reseat the asthmatic passenger away from the smoking section was clearly external to him, and unexpected and unusual in view of industry standards, the airline's own policy, and the simple nature of the requested accommodation. Duncan v Northwest Airlines, Case No. 98-35617; 208 F3d 1112 (CA 9, Wash, 6 April 2000) (flight attendant second-hand smoke pulmonary injury case) cert den as Case No. 00-404; 531 US 1058; 121 S Ct 650; 148 L Ed 2d 571 (10 Dec 2000) (6-3: Rehnquist, Scalia, O'Connor). GASP of Miami, et al. v City of Atlanta, Georgia (case in process, filed 13 March 2001)
|Dangerous Tobacco Product Liability Cases
Negligent Hiring Cases
Cost Recovery Cases By Health Groups/States
Smoking and Fires
In-home Injuries: Custody - Divorce Cases
Condominium/Apartment TTS Cases
"The defendant was charged with the duty to see to it that . . . life was not endangered; and it is apparent he could have performed that duty . . . " [And] "To constitute murder, there must be means to relieve and wilfulness in withholding relief." Stehr v State, 92 Neb 755; 138 NW 676, 678 (1913) (a case involving a child).
When injury or death from TTS ultrahazardous activity occurs, notify the area police and prosecutor. It is their function to arrange or file criminal charges. Try. It would be helpful if the persons who did this could be arrested, and if convicted, make the matter res judicata and estop much of the defense. This author recommends criminal charges be used, not just civil law. When the travel had overseas aspects, extradition can be necessary. The prosecutor can be of assistance in such situations.
Please note the total context as public health agencies and others see it, details at our international law site. In this overall context, you see that your being injured as a nonsmoker is a part of the total TTS genocide problem. The problem is a continuing one. As the material herein cited and referenced shows, there is a long term pattern of injuries and deaths from TTS. Wherefore your case would be well-advised to include reference to 18 USC § 1961 - § 1964 so as to enable you to cite the pattern of injurious and death-causing incidents and thus enable you to receive TRIPLE the normal damages.
Be Aware of Tobacco Lobby Hostility to Your Rights
|The tobacco lobby has a record of having sought to retaliate, intimidate and punish airlines for even starting to comply with your common law "right to fresh and pure air." Here is an example, the President of RJR-Macdonald Tobacco Company (Canada) letter to the President of Air Canada after its designating some flights between Toronto and Montreal and Toronto and Ottawa as totally non-smoking, on a trial basis in 1986, mere partial compliance with the "right to fresh and pure air."
Tobacco lobbyists have pretended that there should be "informed, open debate" on the subject of tobacco and health, but acting on conclusions gained in that debate got oneself being targeted for serious retribution. Here is the text of letter from the Lorillard Tobacco Company document site, http://www.lorillarddocs.com/.
Mr. Pierre Jeanniot,
Dear Mr. Jeanniot,
It is with deep regret and concern that I read of your company's recent decision to designate more than half of your Rapidair flights covering Toronto/Montreal and Toronto/Ottowa as totally non-smoking on a trial basis for a three-month period.
Due to this policy, I feel it is my duty to inform you that I have instructed all RJR-Macdonald Inc. personnel to seek alternate avenues of transportation amongst carriers with more reasonable policies concerning the rights and desires of all its patrons.
I will also be discussing our decision with all of our Canadian sister companies, including Nabisco Brands Ltd., Canada Dry and the Del Monte Corporation.
My instructions to all company personnel will be to designate Air Canada as the last choice of air carrier for company business. Should your experiment prove that there is still a place for smoking sections on all of your flights, we will revert to using your company as our principle air carrier for company business as we have done in the past.
Edward J. Lang
Click here for the original text.
The above material relates to the TTS aspect. However, there are non-TTS precedents which provide additional pertinent legal principles.
Bucholtz v Sirotkin Travel Ltd, 80 Misc 2d 333; 363 NYS2d 415 (1973) (tortious breach of contract via negligence in making proper travel arrangements) Odysseys Unlimited, Inc v Astral Travel Service, 77 Misc 2d 502; 354 NYS2d 88 (1974) (damages for "inconvenience, discomfort, humiliation and annoyance") Siegel v Council of Long Island Educators, 75 Misc 2d 750 (1973) (improper arrangements involving loss of travel time taking care of the problems that arose impacting a number of people, i.e., "class action" implications) Civil Aeronautics Board v Scottish-American Association, Inc, 14 Avi 17,327; 411 F Supp 883 (ED NY, 1976) (specifying personal liability, not merely corporate liability —"The avoidance of personal liability is a privilege of doing business in the corporate form. Such a privilege may be lost, and the so-called corporate veil pierced 'to prevent fraud and to achieve equity.'") Eastern Airlines, Inc v Floyd, 499 US 530, 541; 111 S Ct 489, 496; 113 L Ed 2d 569 (CA 11, 17 April 1991) (case discussing the international treaty on travelers' rights, the "Warsaw Convention" (1929) of which the official text is in French, with a lengthy discussion of precedents, the then terminology, and injury terms, and for example, distinguishing "blessure" (external injury) from "lesion corporelle" which would include injury from smoke). American Airlines, Inc. v Wolens, 513 US 219; 115 S Ct 817; 130 L Ed 2d 715 (Iowa, 18 Jan 1995) (issue of whether federal law preempts state anti-fraud and breach-of-contract law)
Our overall medicolegal site index may also be of aid to you.
| There are hundreds, or even thousands, of violations by smokers each year on U.S. airlines' flights, as noted in the article by
Kitty Bean Yancey, "Fliers are lighting up without consequence: Federal law bans smoking on airlines. You wouldn't know it by the lax enforcement," USA Today, Wednesday, 25 April 2000.
Smokers will even risk killing themselves to smoke, their brain-damge caused addiction is so swevere. See, e.g., "Passenger, 52, decapitated after tumbling off Tube train as he tried to secretly smoke a cigarette" (Daily Mail Reporter, 27 June 2011).
The underlying reason that smokers violate the rules by smoking is that they are addicts, addicts who are brain-damaged. Moreover, society at large does not respect the "right to fresh and pure air" provided by the common law and the Ninth Amendment of the Constitution. We no longer have good laws like Iowa's.
People are no longer educated in science subjects, so they do not understand science data on Toxic Tobacco Smoke. People no longer understand to deal with the system-at-large, instead, they want to deal with smokers one-at-a-time, e.g., arresting them after they commit the violation. That approach simply leads to more incidents. The real solution is to ban manufacture and sale of tobacco products, as Iowa did, so that no more nonsmoker children are turned into adult smokers.
It would also help if people were better educated on the source of tobacco, tobacco farmers, specifically tobacco farmers' role in slavery, and their hatred of America after the Civil War. That hatred led them to change the tobacco formula to make it even more poisonous, by adding coumarin (for rat poison).
If you are injured by TTS in an airlines situation, in view of the rampant disregard of the no-smoking laws and common law, you may show a pattern of such non-compliance to aid your case. "The proof of the pattern or practice [of noncompliance] supports an inference that any particular decision [to tolerate unlawful smoking], during the period in which the policy was in force, was made in pursuit of that policy." See Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).
Traveling with a smoker by car is likewise dangerous due to the high toxic chemical emissions' level. A "British Study Reveals Alarmingly High Levels of Interior Pollution in Smokers’ Cars" (19 October 2012). "The . . . World Health Organization (WHO) recommended safe level is 25 µg/ micrograms per cubic meter (µg/m3). While non-smoking trips were well below that level [a mere 7.4 µg/m3], interior pollution in trips with smoking drivers averaged a far higher 85 µg/m3. Moreover, according to the study, peak levels averaged 385 µg/m3 and on one occasion, the readings were off the scales, with 880 µg/m3. Opening the windows or turning on climate control didn’t improve the situation, as the pollution levels inside the car still exceeded the WHO [safe] levels."
Legal Resources Overview
|Discussion Group On TTS: More Participants Welcome|
Travel Related Information
||priceline.com||Cell Phone Tips
||Safest Hotel Floors: 3-6
More Elaborate Ticket Sites
|Kayak.com (for when you know where you want to go, but don't care which weekend)
Farecast.com (for when you know where you want to go but don't care departure date)
Airtreks.com (for when you know where you want to go, but are willing to add extra destinations with the side-effect of actually reducing cost)
Flightnetwork.com (Canada travel)
AWAI's Get Paid to Travel Site (for learning strategies on how to be paid to travel, fee: approx. $20)
|The Complete Terrorism Survival Guide: How to Travel, Work & Live in Safety, by Juval Aviv (Juris Pub, March 2003)|
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