Environmental tobacco smoke and employees: Hospitality-industry operators may face legal liability

Cornell Hotel and Restaurant Administration Quarterly

Volumn 38, Issue 1, 1997, Pages 5-42

  Young, Katherine A ^a  

^a UNIVERSITY OF TENNESSEE   (United States)

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[No Author keywords available]

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EID: 0031065468     PISSN: 00108804     EISSN: None     Source Type: Journal    
DOI: 10.1177/001088049703800117     Document Type: Article

References (69)

1. 1 Robert L. Rabin, "A Sociolegal History of the Tobacco Tort Litigation," Stanford Law Review, Vol. 44 (April 1992), p. 853.
2. 2 See: "The Health Consequences of Smoking - A Report of the Surgeon General," U.S. Department of Health, Education, and Welfare, 1972; "The Health Consequences of Involuntary Smoking - A Report of the Surgeon General," U.S. Department of Health and Human Services, 1986; "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects," National Research Council, Board on Environmental Studies and Toxicology, Committee on Passive Smoking, 1986; "Fast Food, Growing Children, and Passive Smoke: A Dangerous Menu," issued by a group of state attorneys general, Fall 1993; S. Katharine Hammond, Glorian Sorensen, Richard Youngstrom, and Judith K. Ockene, "Occupational Exposure to Environmental Tobacco Smoke," 274 JAMA 956 (1995); and J.L. Pirkle et al., "Exposure of the U.S. Population to Environmental Tobacco Smoke," 275 JAMA 1233 (April 24, 1996).
3. 2 See: "The Health Consequences of Smoking - A Report of the Surgeon General," U.S. Department of Health, Education, and Welfare, 1972; "The Health Consequences of Involuntary Smoking -A Report of the Surgeon General," U.S. Department of Health and Human Services, 1986; "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects," National Research Council, Board on Environmental Studies and Toxicology, Committee on Passive Smoking, 1986; "Fast Food, Growing Children, and Passive Smoke: A Dangerous Menu," issued by a group of state attorneys general, Fall 1993; S. Katharine Hammond, Glorian Sorensen, Richard Youngstrom, and Judith K. Ockene, "Occupational Exposure to Environmental Tobacco Smoke," 274 JAMA 956 (1995); and J.L. Pirkle et al., "Exposure of the U.S. Population to Environmental Tobacco Smoke," 275 JAMA 1233 (April 24, 1996).
4. 2 See: "The Health Consequences of Smoking - A Report of the Surgeon General," U.S. Department of Health, Education, and Welfare, 1972; "The Health Consequences of Involuntary Smoking - A Report of the Surgeon General," U.S. Department of Health and Human Services, 1986; "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects," National Research Council, Board on Environmental Studies and Toxicology, Committee on Passive Smoking, 1986; "Fast Food, Growing Children, and Passive Smoke: A Dangerous Menu," issued by a group of state attorneys general, Fall 1993; S. Katharine Hammond, Glorian Sorensen, Richard Youngstrom, and Judith K. Ockene, "Occupational Exposure to Environmental Tobacco Smoke," 274 JAMA 956 (1995); and J.L. Pirkle et al., "Exposure of the U.S. Population to Environmental Tobacco Smoke," 275 JAMA 1233 (April 24, 1996).
5. 2 See: "The Health Consequences of Smoking - A Report of the Surgeon General," U.S. Department of Health, Education, and Welfare, 1972; "The Health Consequences of Involuntary Smoking - A Report of the Surgeon General," U.S. Department of Health and Human Services, 1986; "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects," National Research Council, Board on Environmental Studies and Toxicology, Committee on Passive Smoking, 1986; "Fast Food, Growing Children, and Passive Smoke: A Dangerous Menu," issued by a group of state attorneys general, Fall 1993; S. Katharine Hammond, Glorian Sorensen, Richard Youngstrom, and Judith K. Ockene, "Occupational Exposure to Environmental Tobacco Smoke," 274 JAMA 956 (1995); and J.L. Pirkle et al., "Exposure of the U.S. Population to Environmental Tobacco Smoke," 275 JAMA 1233 (April 24, 1996).
6. 2 See: "The Health Consequences of Smoking - A Report of the Surgeon General," U.S. Department of Health, Education, and Welfare, 1972; "The Health Consequences of Involuntary Smoking - A Report of the Surgeon General," U.S. Department of Health and Human Services, 1986; "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects," National Research Council, Board on Environmental Studies and Toxicology, Committee on Passive Smoking, 1986; "Fast Food, Growing Children, and Passive Smoke: A Dangerous Menu," issued by a group of state attorneys general, Fall 1993; S. Katharine Hammond, Glorian Sorensen, Richard Youngstrom, and Judith K. Ockene, "Occupational Exposure to Environmental Tobacco Smoke," 274 JAMA 956 (1995); and J.L. Pirkle et al., "Exposure of the U.S. Population to Environmental Tobacco Smoke," 275 JAMA 1233 (April 24, 1996).
7. 2 See: "The Health Consequences of Smoking - A Report of the Surgeon General," U.S. Department of Health, Education, and Welfare, 1972; "The Health Consequences of Involuntary Smoking - A Report of the Surgeon General," U.S. Department of Health and Human Services, 1986; "Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects," National Research Council, Board on Environmental Studies and Toxicology, Committee on Passive Smoking, 1986; "Fast Food, Growing Children, and Passive Smoke: A Dangerous Menu," issued by a group of state attorneys general, Fall 1993; S. Katharine Hammond, Glorian Sorensen, Richard Youngstrom, and Judith K. Ockene, "Occupational Exposure to Environmental Tobacco Smoke," 274 JAMA 956 (1995); and J.L. Pirkle et al., "Exposure of the U.S. Population to Environmental Tobacco Smoke," 275 JAMA 1233 (April 24, 1996).
8. 3 Shannon Brownlee, "The Smoke Next Door," U.S. News & World Report, June 20, 1994, p. 66. Brownlee writes: "An EPA analysis of secondhand smoke shows it contains 4,000 compounds, including 43 known carcinogens and other hazardous substances, such as ammonia."
9. 4 Alix M. Freedman, "Grand Jury Probes Secondhand-Smoke Studies," Wall Street Journal, Marketplace, February 15, 1996, p. B1.
10. 5 Margaret Kriz, "Where There's Smoke...," The National Journal, May 7, 1994, p. 1056. The findings of EPA physicist Jim Repace led to a National Research Council study, which in turn was the basis for the 1986 U.S. Surgeon General's report.
11. 6 Freedman, p. B3.
12. 7 "Passive Smoking Linked to Higher Risk of Asthma," Knoxville New-Sentinel, November 21, 1994, citing a study reported in the November 1994 American Journal of Respiratory and Critical Care Medicine by scientists at the universities of Lausanne and Basel in Switzerland, the EPA, and the Harvard School of Public Health.
13. 8 Philip J. Hilts, "Secondhand Smoke: The Real Risk for You and Your Family," Good Housekeeping, November 1996, p. 171.
14. 9 "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders," U.S. Environmental Protection Agency, 1993.
15. 10 Brownlee, p. 66.
16. 11 Jacob Sullum, "Just How Bad Is Secondhand Smoke?," The National Review, May 16, 1994, p. 51.
17. 12 "Tobacco Suit," Atlanta Journal and Constitution, July 22, 1994, p. 8A.
18. 13 Laura M. Litvan, "A Smoke-Free Workplace? Proposed Federal Regulations," Nation's Business, May, 1994, p. 65, where she quotes Thomas Launa, a Tobacco Institute spokesman.
19. 14 Michael Siegel, "Involuntary Smoking in the Restaurant Workplace," Journal of the American Medical Association, Vol. 270, No. 4 (July 28, 1993), p. 490.
20. 15 Hilts, p. 169. Cited are the test conclusions of S. Katharine Hammond, Ph.D., University of California at Berkeley, School of Public Health, who measured smoke levels in various locations to determine the presence of N-nitro sodimethylamine (NDMA), a chemical found in cigarette smoke.
21. 16 Karen Hsu, "CDC Refines Way to Gauge Passive Smoke," Wall Street Journal, August 23, 1995, p. 95.
22. 17 Hsu, p. 95.
23. 18 Timothy Noah, "Exposure to Workplace Tobacco Smoke Is Greater Than Believed, Study Says," Wall Street Journal, April 24, 1996.
24. 19 Noah, op. cit.
25. 20 Mikhail F. Denissenko, Annie Pao, Moon-Shong Tang, and Gerd P. Pfeifer, "Preferential Formation of Benzo[a]pyrene Adducts at Lung Cancer Mutational Hotspots in P53," Science, October 18, 1996, pp. 317, 430.
26. 21 Lois Weiss, "Smoking Bills on Agenda," Real Estate Weekly, June 1, 1994, p. 1, quoting Nicholas M. Charchiaro, Sr., branch manager for AFA Protective Systems regarding OSHA rule 29 CFR 1910.1033.
27. 22 Associated Press, "Casinos Buck OSHA No-Smoking Proposal," Knoxville News-Sentinel, December 9, 1995, p. C8.
28. 23 "NLBA Warns of 'Nationwide Catastrophe,'" NewsProfiles@aol.net, February 9, 1996.
29. 24 Litvan, p. 65, quoting Wendy Webster, spokeswoman for the NRA.
30. 25 National Restaurant Association, "Assumptions on Second-Hand Smoke Not Holding Up Under Scientific Scrutiny," press release, November 14, 1995.
31. 26 Ken Sexton, "An Inside Look at Air Pollution; Complicated Public Policy Issues at Stake," EPA Journal, October, 1993, p. 9.
32. 27 Alan Liddle, "Food Service Leaders Rally for Unity at Western Show," Nation's Restaurant News, September 5, 1994, p. 1.
33. 28 Alice Horrigan, "The Smoking Gun: Passive Smoke Hazards," E, October, 1994, p. 28.
34. 29 Hilts, p. 173. Outlets in Oklahoma are an exception, as state law there mandates that restaurants allow smoking.
35. 30 Mark Curriden, "The Heat Is On," ABA Journal, September 1994, p. 58.
36. 31 Jolie Solomon and Peter Katel, "When There's Smoke, There's Fire," Newsweek, October 28, 1996, p. 52.
37. 32 Rabin, p. 857.
38. 33 Suein L. Hwang, "RJR Chief Says He Would Consider a 'Resolution' to Cigarette Controversy," Wall Street Journal, March 25, 1996, p. B3.
39. 34 Milo Geyelin, "Liggett, Five States Set Pact Covering Treatment of Smoking-Related Illnesses," Wall Street Journal, March 18, 1996, p. A3.
40. 35 Rabin, p. 857.
41. 36 Carter v. Brown & Williamson Tobacco Corp., 95-00934 (Cir. Ct., Duval Co., Fla.).
42. 37 Junda Woo, "Cigarette Suit Approval," Wall Street Journal, December 13, 1994, p. B11.
43. 38 Philip J. Hilts, "A Personal War Against Tobacco," Good Housekeeping, November 1996, p. 173.
44. 39 See: Broin et al. v. Philip Morris Companies Inc. et al., 641 So.2d 888 (3d DCA 1994); Philip Morris Incorporated v. Norma R. Broin, 654 So.2d 919 (Fla. 1995); and Philip Morris Inc., et al. v. Norma R. Broin, et al., 1996 WL 1146 (FLA. APP.3 DIST.)(1996).
45. 39 See: Broin et al. v. Philip Morris Companies Inc. et al., 641 So.2d 888 (3d DCA 1994); Philip Morris Incorporated v. Norma R. Broin, 654 So.2d 919 (Fla. 1995); and Philip Morris Inc., et al. v. Norma R. Broin, et al., 1996 WL 1146 (FLA. APP.3 DIST.)(1996).
46. 39 See: Broin et al. v. Philip Morris Companies Inc. et al., 641 So.2d 888 (3d DCA 1994); Philip Morris Incorporated v. Norma R. Broin, 654 So.2d 919 (Fla. 1995); and Philip Morris Inc., et al. v. Norma R. Broin, et al., 1996 WL 1146 (FLA. APP.3 DIST.)(1996).
47. 40 David C. Bojanic, "The Smoking Debate: A Look at the Issues Surrounding Smoking Bans in Restaurants," Hospitality Research Journal, Vol. 20, No. 1 (1996), p. 27. It is not possible to determine whether the restaurateur-respondents made a distinction between being morally obligated and being legally obligated to protect employees from ETS.
48. 41 See: Milo Geyelin, "Widower Wins Death Benefits in Case Over Secondhand Smoke in Workplace," Wall Street Journal, December 13, 1995, p. B6; and "VA Is Ordered to Pay Workers' Comp for Death Blamed on Secondhand Smoke," Knoxville News-Sentinel, December 16, 1995, p. A8.
49. 41 See: Milo Geyelin, "Widower Wins Death Benefits in Case Over Secondhand Smoke in Workplace," Wall Street Journal, December 13, 1995, p. B6; and "VA Is Ordered to Pay Workers' Comp for Death Blamed on Secondhand Smoke," Knoxville News-Sentinel, December 16, 1995, p. A8.
50. 42 Fasang v. Ford Motor Company, 4 MIWCLR P 3099 (1991).
51. 43 Johannsen v. New York City Department of Housing Preservation and Development, 94 NYWCLR P.2043, and Claimant v. New York Stare Division of Substance Abuse, 95 NYWCLR P 1149.
52. 44 W. Page Keeton et al., Products Liability and Safety, 2nd Edition (Mineola, NY: The Foundation Press, Inc., 1989), p. 684.
53. 45 Ibid.
54. 46 Weiss, p. 1.
55. 47 Gordon v. Raven Systems & Research, Inc. (1983, Dist Col App) 462 A2d 10.
56. 48 McCarthy v. Department of Social & Health Services (1986) 46 Wash App 125, 730 P2d 681, 1 BNA IER Cas 1233, 106 CCH LC P 55750, review gr 108 Wash 2d 1001.
57. 49 Bernard v. Cameron & Colby Co. (1986) 397 Mass 320, 491 NE2d 604, 2 BNA IER Cas 678, 104 CCH LC P 55584, 63 ALR4th 1015.
58. 50 Vickers v. Veterans Administration (1982, WD Wash) 549 F.Supp. 85, 29 BNA FEP Cas 1197, 30 CCH EPD P 33099.
59. 51 Kensell v. Oklahoma (1983, CA10 Okla) 716 F2d 1350.
60. 52 Bernard, 397 Mass at 320, supra.
61. 53 McCarthy, 46 Wash App at 125. supra.
62. 54 Palmer v. Del Webb's High Sierra, 108 NEV. 673, 838 P.2D 435 (1992).
63. 55 Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985) and Johns-Mansville Product Corp. v. Superior Court of Contra Costa County (Reba Rudkin, real party in interest), 27 Cal. 3d 465, 612 P.2d 948, 165 Cal. Rptr. 858 (1980).
64. 56 In the past, some casinos supplied free cigarettes to all customers. Later, free cigarettes were supplied only to favored customers. This dual capacity (employer and retailer) could enhance the plaintiff's right to recovery. The plaintiff in Palmer, 838 P.2D at 437, an employee of a casino, sued because he was constantly exposed to ETS in the workplace (he was a dealer). The Palmer case emphasized that this particular casino encouraged smoking by giving away free cigarettes, and that the casino was a retailer for economic gain because the cigarettes enhanced the customers' value perception.
65. 57 In Homeyer v. Stanley Tulchin Associates, Inc., the Seventh Circuit Court of Appeals recently reversed and remanded a dismissal of an Americans with Disabilities Act (ADA) claim. The court did so because the lower court had improperly held that there was no set of facts that the plaintiff could plead that would make her chronic severe allergic rhinitis and sinusitis a "disability" within the meaning of the act (1996 WL 428030 [7th Cir.(Ill.)]). Earlier, a federal district court in the Seventh Circuit had refused to dismiss a similar case, stating that a plaintiff with ETS-triggered asthma could go forward with an ADA claim against his employer. The Court held that a substantial limitation on the ability to breathe is a disability within the meaning of the ADA. Bell v. Elmhurst Chicago Stone Company, 919 F. Supp 308, N.D. Ill. (1996).
66. 58 Doug Levy, "Struggling to Clear the Air on Tobacco," U.S.A. Today, October 12, 1994, p. 1D.
67. 59 David L. Corsun, Chen A. Young, and Cathy A. Enz, "Should NYC's Restaurateurs Lighten Up?," Cornell Hotel and Restaurant Administration Quarterly, Vol. 37, No. 2 (April 1996), p. 26.
68. 60 Sandra G. Spodman, "Restaurant Employees' Risky Business: Research Links Waiters' Lung Problems to Secondhand Smoke," Washington Post, August 3, 1993, p. WH7; and Siegel, p. 490.
69. 60 Sandra G. Spodman, "Restaurant Employees' Risky Business: Research Links Waiters' Lung Problems to Secondhand Smoke," Washington Post, August 3, 1993, p. WH7; and Siegel, p. 490.