Employer Liability for Secondhand Smoke Risks

Casinos and bars are just about the last places in the country where you can sit down and really enjoy a lung-choking serving of secondhand smoke these days. In fact in California, New York and a few other states, you can't even smoke in bars (and soon no drinking and no talking). New Jersey has a similar ban, however, the casinos in Atlantic City successfully lobbied to obtain an exception to the rule. Now a recently filed lawsuit may make them rethink the issue. This article from the New Jersey Law Journal has coverage of a new lawsuit brought by a 25-year casino employee, alleging that involuntary exposure to secondhand smoke for the last two and a half decades gave him lung cancer.

The lawsuit is framed as a premises liability action, charging that the casino owed its employees a nondelegable duty to provide a reasonably safe workplace and not to create any conditions that would render the premises dangerous. The employee/plaintiff alleges the casino breached this duty by allowing smoking in its facilities all these years without adequately protecting or warning its employees of the associated risk.

The article doesn't address an issue that I would be interested in - the application of the workers' compensation bar to this type of claim. I guess we will have to follow the case and see what happens when . . . (wait for it) . . . the smoke clears.