In Secondhand Smoke Suit, Jury’s Verdict Is in Favor of Broker

For real estate brokers in Massachusetts, this was quite a relief

Boston–For real estate brokers in Massachusetts, this was quite a relief. In a case that could have had major implications for the real estate industry here, and potentially, national repercussions as a precedent-setter, a Suffolk County jury rejected a Boston condominium owner’s lawsuit in which she claimed that tobacco fumes from a neighbor amounted to a health hazard. She also claimed that her agent knew the neighbor, who lived downstairs, smoked but hid that information from her.

The plaintiff in the suit, Alyssa Burrage, says 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 explains. “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.”

During the course of the trial, Burrage and her parents testified that they had asked DeAngelo about the smell of smoke several times during repeated visits to the condo, and that he assured them the seller must be a smoker and the smell would dissipate over time. DeAngelo denied those allegations on the witness stand, maintaining that the subject of smoking never came up during his visits to the condominium with Burrage and her parents.

“Joseph DeAngelo is a very diligent and hard-working real estate broker, and that made him an excellent witness,” Gregory says. “He kept copious notes of all his interactions with the buyer and retained all relevant emails and other communications. He is someone who crosses all his t’s and dots his i’s, and the jury clearly saw that. He had all the disclosure documents and everything else necessary to establish that he had done his duty, and we were able to present all that to the jury.”