TABLE OF CONTENTS TABLE OF CONTENTS OF REPLY BRIEF.......i TABLE OF STATUTES, RULES AND AUTHORITIES CITED IN REPLY BRIEF............................................................................................................

i TABLE OF CASES CITED IN REPLY BRIEF..............................................ii PRELIMINARY STATEMENT ........1 GHIs Factual Assertions to Which a Reply is Required .........................................................2 GHIs Argumentative Assertions to Which a Reply is Required ..........6 CERTIFICATION OF BRIEF FORMAT...........16 CERTIFICATE OF ADMISSION OF ATTORNEY WITH OFFICES OUTSIDE THE STATE OF MARYLAND.....16 CERTIFICATE OF SERVICE....16 APPENDIXAppendix 1 Decision in McDaniel v. Strata Plan LMS, 1657 (Number 2), 2012 BCHRT 167 (May 14, 2012) British Columbia (Canada) Human Rights Tribunal......Appendix 1 Table of Statutes, Rules and Authorities Cited in Appellant David S. Schumans Reply Brief The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006.1, 3 U.S. Department of Health and Human Services. How Tobacco Smoke Causes Disease - The Biology and Behavioral Basis for Smokingi

Attributable Disease: A Report of the Surgeon General. 2010. Atlanta, Georgia: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health...1, 3 Table of Cases Cited in Appellant David S. Schumans Reply Brief Gorman v. Sabo, 210 Md. 155 (1956)9 Green v. Greenbelt Homes, Inc., 232 Md. 496 (1963)......10 McDaniel v. Strata Plan LMS, 1657 (Number 2), 2012 BCHRT 167 (May 14, 2012) British Columbia (Canada) Human Rights Tribunal......10-13 Sadler v. Dimensions Healthcare Corp., 378 Md. 509 (2003).....15 Village Green Mutual Homes, Inc. v. Randolph, 362 Md. 179 (2000)10

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Preliminary Statement GHIs opposition1 completely ignores the admissions of Mr. Popovic and GHIs witnesses: There is no risk-free level of exposure to tobacco smoke and even brief exposures to secondhand smoke has adverse consequences for the heart, blood and blood vessels. See 2010 Surgeon Generals Report at Forward, and 2006 Surgeon Generals Report at page 64.2 Secondhand smoke causes cancer. [Mr. Popovic, E. 1294].

Secondhand smoke is disturbing to non-smokers. [GHIs expert, Dr. Gots, E. 1028]. It is widely understood that secondhand smoke is dangerous and the health effects of secondhand smoke are absolutely documented. [GHIs President, E. 1172, 1205]. [GHIs Member Complaints Panel Chairperson, E. 1074, 1092]. Secondhand smoke is annoying to Mr. Schuman. [Mr. Popovic, E. 1269]. Mr. Schuman suffered damages from his exposure to secondhand smoke. [Mr. Popovic, E. 1271-72]. It may be unpleasant to live next-door to a smoker. [GHIs expert, Dr. Gots, E. 1031]. Secondhand smoke is irritating and malodorous. [GHIs General Manager, E. 608].

Mr. Popovic failed to file any brief in opposition to Mr. Schumans brief. Mrs. Popovic, who suffered from a brain tumor that prevented her from attending any of the proceedings in the Circuit Court, passed away after the trial in this matter.
1

The Circuit Court took judicial notice of the Surgeon Generals reports on secondhand smoke published in 2006 and 2010.

 Secondhand smoke migrated from the inside of the Popovics home into Mr. Schumans home (Anybody who lives in GHI housing knows that sound and smell travel through the walls.). [GHIs Member Complaints Panel Chairperson, E. 1074]. [GHIs President, E. 1172]. [Mr. Popovic, E. 1266]. 68]. Mr. Popovic currently smokes on his patio. [Mr. Popovic, E. 1267-

The right of smokers to smoke ends when their behavior affects the health and well-being of others. [GHIs General Manager, E. 618]. GHI has the power to discipline members who play their music too loud or allow their grass to grow too high. [GHIs General Manager, E. 605]. GHIs Factual Assertions to Which a Reply is Required3 1. GHI Statement: Mr. Schumans complaints from the 1990s about secondhand smoke were resolved and Mr. Schuman did not complain about secondhand smoke again until 2009. [p. 4]. Mr. Schumans Reply: Mr. Schumans complaints about the Popovics

smoking were not resolved due to GHI caulking and sealing holes between the Schuman and Popovic homes, but rather, the problem went away because there wasnt as much smoking during this time. [E. 409]. 2. GHI Statement: Mr. Schumans extensive renovations allowed secondhand smoke to enter his unit. [p. 4-5]. Mr. Schumans Reply: Mr. Schuman testified that problems with the

Popovics smoking returned in 2007 (before renovations began) and seemed to come on pretty suddenly. [E. 399-401]. Further, the contractor sealed [e]verywhere theres a hole and believed that there was nothing he
3

Citations are to pages of GHIs opposition brief. In quotes from GHIs opposition included in this reply, Mr. Schuman replaces terms such as Appellant with proper names such as Mr. Schuman. 2

could do to further seal the unit. [E. 205]. GHI inspected and approved these renovations and never indicated that it had any problems with this work. [E. 206]. 3. GHI Statement: GHI complied with the dispute-resolution process in an attempt to facilitate and resolve disputes and encourage members to reach an agreement on their own. [p. 5-6]. Mr. Schumans Reply: The purpose of GHIs Member Complaints

Procedures is to resolve complaints against members. [E. 1584]. While many complaints can be resolved informally, there are times when the complaints must be resolved formally. In such situations, GHIs Board has the power to hold a formal hearing, and, after this hearing, dismiss the case, allow the member to correct the matter, terminate the members contract or file for judicial relief. [E. 1586-88]. Instead of taking action to decide the case, GHI took no action at all. 4. GHI Statement: During GHIs Member Complaints Panel hearing, [i]t was clear that Mr. Schuman was unwilling to tolerate any level of secondhand smoke. [p. 7]. Mr. Schumans Reply: The Surgeon General found that [t]here is no

risk-free level of exposure to tobacco smoke and even brief exposures to secondhand smoke have adverse consequences for the heart, blood and blood vessels. See 2010 Report at Forward, and 2006 Report at page 64. Thus, Mr. Schuman was justified in his unwillingness to tolerate any level of secondhand smoke. 5. GHI Statement: Looking at this dispute in the larger context of the 3

GHI community, the Board considered the members attitudes about smoking and determined that the membership, as a whole, was pretty content with the status quo. [p. 9]. Mr. Schumans Reply: GHI never referred this issue to the membership

for its input and failed to acknowledge that there might be members interested in a smokefree environment. After trial in this matter, GHIs

members voted to direct the Board of Directors to develop a proposal for consideration by the membership that would allow members of an entire row of units to unanimously agree to revise their Mutual Ownership Contracts to indicate that smoking inside these units is not allowed. See

http://ghi.coop/content/special-committee-reviewing-implications-establishing -non-smoking-rows-units-0. Additionally, the University of Maryland Board of Regents recently approved a policy banning outdoor smoking on its campuses, including the College Park campus where over the years, many GHI residents have attended. See http://www.diamondbackonline.com /news/smoking-to-be-banned-on-all-usm-campuses1.2880464#. UAcjro76TTR. These actions are at odds with GHIs statement that its

members were content with the status quo. 6. GHI Statement: The Board informed Mr. Schuman that there was nothing more they could do and encouraged the parties to work together to resolve the dispute [but] [a]t this point, Mr. Schuman had several options, including the ability to place his complaint on the agenda of the membership meeting, to petition for a special meeting, or to [request] a special meeting. [p. 10]. Mr. Schumans Reply: This statement is at odds with GHIs Presidents

letter to Mr. Schuman announcing the decision of the Member Complaints Panel in which she stated, there appears to be nothing further that GHI can do to resolve the problem. [E. 1635]. [emphasis added]. If Mr. Schuman had other options as GHI claims today, it did not notify Mr. Schuman of these options. Moreover, considering the fact that, by contract, Mr. Schuman and GHI have a landlord-tenant relationship, Mr. Schuman did not need to petition his fellow members to change any policy (which would be the point of bringing an issue to the membership) in order to force GHI to require Mr. Popovic to comply with GHIs nuisance clause. 7. GHI Statement: By the time of trial, Mr. Popovics smoking had decreased to the point where for the past several months he smoked no more than two cigarettes each evening outside. [p. 10-11]. Mr. Schumans Reply: The full quote about Mr. Popovics current patio

smoking states Im smoking one, two, three, cigarettes in [the] last couple of months. [E. 1259]. Mr. Popovic admits that it takes him 5-6 minutes to smoke each cigarette outside on his patio. [E. 1265-67]. Mr. Schuman testified that he cannot just close his windows when he smells Mr. Popovics smoke because smoke is already inside by the time he smells the smoke. [E. 1323]. Mr. Popovics other next-door neighbor, Ms. Ipolito, testified that she must shut her windows and refrain from using her screened-in porch due to Mr. Popovics patio smoking, and this makes her feel like a captive in [her] own house while he gets to sit out on the porch. [E. 312-13]. 8. GHI Statement: Mr. Schumans secondhand smoke expert [James 5

Repace, MSc.] reported that when no one was smoking outside, the air in Mr. Schumans unit had median PPAH levels of 1 nanogram per cubic meter in the living room, and 1.5 nanograms per cubic meter in the dining room and when Mr. Popovic was smoking [on his patio], the median PPAH levels increased to 2 nanograms per cubic meter in the living room and 3 nanograms per cubic meter in the dining room but also measured PPAHs of 2 nanograms per cubic meter in the non-smoking courtroom of a nonsmoking courthouse. [p. 13-14]. Mr. Schumans Reply: In rebuttal, Mr. Repace testified in response to the

question, Can you explain how your findings indicate that Mr. Schuman was exposed to secondhand smoke in his unit despite having the same reading at some point when you turned on the machine here in this Courtroom?: Yes, the background levels in this Courtroom are dependent on the background levels from outdoors because the air is pulled into the building from outdoors; has a lot of diesel buses running around, and what I saw in my measurements in Mr. Schumans unit from Mr. Popovics outdoor smoking was an increase doubling of the level of carcinogens in both his dining room and his living room, and the levels were different. They were higher in the dining room, which is closer to Mr. Popovic, and lower in the living room. The absolute value of the carcinogen levels was not what was important. It was the fact that the relative values changed, which were a very strong indication that Mr. Popovics indication that Mr. Popovics smoke was entering into the Schuman residence, and also, I detected with my nose, my eyes, the irritation and odor of secondhand smoke during the period when Mr. Popovic was smoking, and when he was not, I did not; so, it was a clear indication that smoke was coming in objectively. [E. 1343-44]. [emphasis added]. GHIs Argumentative Assertions to Which a Reply is Required 1. GHI Statements: Mr. Schuman fails to show (or even argue) how or why the Circuit Court erred, either factually or legally; he merely states that he disagrees with the Circuit Courts decision. Nowhere does Mr. Schuman show that Judge Northrop applied the wrong legal standard or decided any facts incorrectly. [p. 15]. 6

Mr. Schumans Reply:

As an appeal of a bench trial decision, the

standard of review in the instant case is the clearly erroneous standard. In Anderson v. Joseph, 200 Md. App. 240, 248 (2011), the court found that When an action is tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. A factual finding is clearly erroneous if there is no competent and material evidence in the record to support it. When the ruling of a trial court requires the interpretation and application of Maryland case law," however, we give no deference to its conclusions of law. [citations omitted]. Mr. Schuman believes that the Circuit Courts decision was clearly erroneous because the central facts of the case are undisputed (e.g. secondhand smoke is dangerous as well as annoying and secondhand smoke from the Popovics property migrated onto and into Mr. Schumans property), yet the Circuit Court made conclusions of law that disregarded these undisputed facts and ignored Maryland case law concerning nuisances and breaches of contracts in landlord/tenant matters when it entered judgment for Mr. Popovic and GHI. If the parties were in agreement that secondhand smoke is harmful and annoying, that it entered Mr. Schumans property, and that Mr. Schuman suffered physical effects from the secondhand smoke, then the Circuit Courts decision that the Popovics smoking did not violate GHIs nuisance clause was without any factual basis. Despite the Surgeon Generals finding that there is no safe level for 7

secondhand smoke, the Circuit Courts decision could be read as establishing that there is a safe level for exposure to secondhand smoke in a multi-unit dwelling. In its decision, the Circuit Court stated The legislature has looked at this, both state and federal. Theres no smoking in restaurants in the State of Maryland. You cannot smoke on an airplane. You cant smoke in the courthouse. I mentioned that a few moments ago. This is a legislative decision. The legislatures looked at secondhand smoke. Theyve looked at that issue, and theyve made a determination, and they have chosen, at least up to this point, not to ban secondhand smoke generally or all smoking or to limit it to certain smoking areas. We hear about activist courts. Im not going to take a position one way or the other as to whether Im activist or not, but I do believe and Ill tell you right now that I think if this decision is to be made, it is a decision, in my view, thats going to have to be made by the legislature. [E. 1431-32]. The Circuit Courts refusal to decide the issue because [t]his is a legislative decision, is clearly an error of law that this Honorable Court may review and is a finding that should be reversed because the Circuit Court has the duty to decide cases and controversies presented to it and not shirk its responsibility under the theory that the General Assembly has the power to legislate a decision. Oddly enough, the Circuit Court permanently enjoined Mr. Popovic, albeit with his consent, from smoking inside his house, yet failed to award any monetary damages to Mr. Schuman. Surely, the Circuit Court could not enter a permanent injunction, even with the consent of the parties, unless there was a legal basis for doing so, and if there was a legal

basis for doing so, it follows that Mr. Schuman is entitled to monetary damages. 2. GHI Statement: The Circuit Court did not err in finding that Mr. Schuman failed to meet his burden of establishing a claim for breach of the implied covenant of quiet enjoyment because [o]ccasional secondhand smoke in a multi-family residential community is an inconvenience[] [and] disturbance[] that [is] inherent in living in an apartment. [p. 16-17]. Mr. Schumans Reply: In Gorman v. Sabo, 210 Md. 155, 159 (1956), the

court found that [i]f noise causes physical discomfort and annoyance to those of ordinary sensibilities, tastes and habits and seriously interferes with the ordinary comfort and enjoyment of their homes, and thus diminishes the value of the use of their property rights, it constitutes a private nuisance, entitling those offended against to damages. GHIs allegation that

[o]ccasional secondhand smoke in a multi-family residential community is an inconvenience[] [and] disturbance[] that [is] inherent in living in an apartment has no basis in Maryland law because if noise may be the basis of a nuisance claim, certainly an admittedly hazardous gas, such as secondhand smoke, that causes physical damage to those who are forced to breathe it may be the basis of such a claim. Moreover, Mr. Popovics smoking was not occasional, as alleged by GHI, but occurred every single day. Thus, Mr. Schuman was exposed to the harmful chemicals present in secondhand smoke every single day, and this was not the type of inconvenience or disturbance that is inherent in living in an apartment. 3. GHI Statements: GHI did not deprive Mr. Schuman of the 9

essence of his agreement because Mr. Schuman did not bargain to be free of exposure [from] secondhand smoke and GHI had no obligation to protect him from such exposure. GHIs Mutual Ownership Contract did not expressly authorize or require GHI to take action against smokers. There is no provision allowing GHI to control the smoking habits of the people living in any of its 1600 units. [p. 17-19]. Mr. Schumans Reply: While GHIs Mutual Ownership Contract did not

specifically mention secondhand smoke, the language of this contract clearly encompassed secondhand smoke as a nuisance since it is objectionable conduct that annoys, inconveniences and damages the smokers neighbors. [E. 1604]. In moving into GHI, Mr. Schuman had the reasonable expectation that GHI would use its power under the associations governing documents to stop other members from committing acts that violate the Mutual Ownership Contract. See Green v. Greenbelt Homes, Inc., 232 Md. 496, 500-04 (1963); Village Green Mutual Homes, Inc. v. Randolph, 362 Md. 179, 183 (2000). Moreover, GHIs claims that it was powerless to stop Mr. Popovic from smoking is at odds with the decision in Green (a case in which GHI was a party) since that court found that GHIs MOC contained restrictions on the use of the cooperative dwelling unit which gave the corporation the right to terminate the contract in the event of the members breach. Id. at 504. 4. GHI Statement: Cases from other jurisdictions support the Circuit Courts findings. [p. 19-20]. Mr. Schumans Reply: In McDaniel v. Strata Plan LMS, 1657 (Number

2), 2012 BCHRT 167, a decision issued by the British Columbia (Canada) 10

Human Rights Tribunal on May 14, 2012, the McDaniels filed a claim against their strata corporation4 due to its failure to prevent secondhand smoke from migrating into their home from the patios and decks of three of their neighbors homes.5 Id. at 1-2. The strata corporation suggested that the McDaniels buy an air conditioner and attempt to obtain the support of other residents to enact a no smoking bylaw. Id. at 7. The tribunal also found that the strata corporation recognized the problems faced by the McDaniels, but was uncertain about what it could do to assist them and sought to strike a balance between what the McDaniels wanted and what others in the building wanted since the bylaws do not specifically prohibit smoking, although the bylaws prevent nuisances, hazards, and any act that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot. Id. In

analyzing the evidence, the tribunal noted the McDaniels smoke fume log that fastidiously documents at least 175 incidents of smoke infiltration, often on multiple occasions daily. Id. at 9. The tribunal found that the strata corporation never opted to enforce its Nuisance By-law and

A strata corporation is created to divide a building(s) and/or a parcel of land into separate components individually owned and common components owned by all of the owners. See http://www.fic.gov.bc.ca/ pdf/responsibilities_strata/guide03.pdf [accessed on July 18, 2012].
5

Mr. Schuman filed a certified copy of the McDaniel decision in the Clerks Office of this Honorable Court on July 9, 2012 and have attached a copy to the appendix to this reply. 11

for more than half of the period of [the McDaniels] ownership of the premises, they were subjected to secondhand smoke to a degree they found beyond unacceptable and debilitating. During periods of increased smoke infiltration, their health risks and stress levels escalated. Id. at 10, 14. Additionally, the tribunal found that [t]hough aware of the McDaniels sensitivities and vulnerabilities, the Respondent never marshaled a meaningful, effective response. In my view, based on the materials filed, the Respondents conduct, while not overtly aggressive or confrontive, was indecisive and minimizing of the McDaniels distress to the point that they came to hate their home. The Tribunal has said, and I accept that from any personal, social, emotional or developmental perspective, a home is central to a persons security and sense of self. Id. at 14. The tribunal ordered the strata corporation to cease its discrimination and refrain from committing a similar contravention in the future and pay the McDaniels a total of $8,018.88 as costs and compensation for injury to their dignity, feelings and self-respect. Id. at 15-16. As did the strata corporation in McDaniel, GHI failed to enforce its nuisance clause with regard to the Popovics smoking, and thus, using the language from the McDaniel decision, never marshaled a meaningful, effective response to Mr. Schumans complaints. Id. at 14. Additionally, the strata corporation suggested that the McDaniels could have attempted to obtain the support of other residents to enact a no smoking bylaw, just as GHI argues in the instant case, but both Mr. Schuman (and presumably, the McDaniels) believe that such lobbying is not necessary or required to exercise their rights under a contract that includes a nuisance clause. 12

Unlike cases cited by GHI in its brief, McDaniel is a case from 2012. The McDaniel decision is the kind of decision that will be repeated over and over again as the dangers of secondhand smoke become engrained in the public consciousness. In fact, future legal scholars will, in all likelihood, be shocked at the Circuit Courts decision in the instant case since this decision is at odds with the proven dangers of secondhand smoke. 5. GHI Statement: not negligent. [p. 22-23]. Mr. Schumans Reply: The Circuit Court properly found that GHI was As Mr. Schumans landlord, GHI had a duty, by

contract, to enforce the Mutual Ownership Contract. GHIs failure to enforce the nuisance clause of the Mutual Ownership Contract gives rise to Mr. Schumans nuisance claim against GHI. 6. GHI Statement: Mr. Schuman failed to present evidence of damages that are actual and reasonably certain and suffered no medical or physical harm other than smell. [p. 11-12, 24]. Mr. Schumans Reply: Mr. Schuman presented significant evidence at

trial as to the medical and physical harm other than smell he (and the Popovics other neighbors) suffered due to Mr. Popovics smoking. Mr. Schuman testified that the secondhand smoke caused him to have difficulty breathing, caused his heart to race, caused his eyes to tear up, caused him to cough and sneeze, caused him to have headaches and prevented him from sleeping. [E. 401-02]. Mr. Schumans expert, Dr. Munzer, the former President of the American Lung Association, testified that [t]hese are the

13

kind of symptoms that we would typically hear from a person exposed to secondhand smoke. [E. 862-63]. The symptoms that Mr. Schuman

reported were echoed by Mr. Popovics other next-door neighbor, Ms. Ipolito, who testified that the smoking trigger[ed] wheezing and caused her to use a rescue inhaler to breathe. [E. 308-09]. Additionally, the Surgeon General states that no amount of exposure to secondhand smoke is safe. So the exposure in itself is a harm, regardless of symptoms. 7. GHI Statement: The Circuit Court properly found that Mr. Schuman failed to mitigate his exposure to secondhand smoke. [p. 25]. Mr. Schumans Reply: Mr. Schuman is not aware of any Maryland case

or statute requiring a resident of one home to mitigate his damages from the harmful and dangerous products migrating from his or her neighbors home and believes that no such case or statute exists. This lack of duty to mitigate notwithstanding, Mr. Schuman could not open his windows or use his patio due to Mr. Popovics smoking. [E. 467]. Mr. Schuman contractor sealed all of the holes between the Schuman and Popovic homes. [E. 205]. Outside of vacating his home, there was nothing more Mr. Schuman could do to mitigate his damages. 8. GHI Statement: The Circuit Court correctly ruled that Mr. Schuman established no claim for nuisance and he was not entitled to an injunction prohibiting Mr. Popovic from smoking outside. [p. 27]. Mr. Schumans Reply: If Mr. Popovics patio smoking caused

secondhand smoke to migrate onto Mr. Schumans property, and this

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Appendix
McDaniel v. Strata Plan LMS 1657 (Number 2), 2012 BCHRT 167 (May 14, 2012) British Columbia (Canada) Human Rights Tribunal