What’s the story with second-hand smoke?

What’s the story with second-hand smoke?

What is the extent of a smoker’s responsibility to others for tainting the air with second-hand smoke? (There are also halachic issues associated with the dangers to smokers themselves, but that’s a discussion for another time.) Smoking on another’s property without permission is clearly forbidden. Smoking in public areas where it is prohibited is illegal (aside from any halachic issues involved).

But what if one smokes in the comfort of their own home, and the second-hand smoke travels to the neighbors? Let’s ask:

The smoker says: There is a halachic concept of zeh oseh b’toch shelo ([I’m] doing in [my] private domain) and therefore I’m not accountable for the (negative) effects to someone else’s property. Leave me alone!

The neighbor says: But there is a halachic responsibility [cough] incumbent upon each individual of harchakas nezakin (distancing—or preventing—damage to others).

The smoker says: Besides, I have the right of a chazakah (halachic assumption [set through precedent]). I’ve been smoking here for years, and no one has ever complained before.

The Rav says: The neighbor is right that the smoker is responsible for harchakas nezakin, even though the smoker was oseh b’toch shelo. Smoking is considered giri dileh (his arrows)—similar to the classic paradigm of shooting an arrow from private property into a public area—since the odor of smoke and the pollution has an immediate effect on those in the vicinity. (Even in circumstances where there is no direct consequence of the perpetrator’s action, and therefore not halachically comparable to an arrow, a chassid—pious individual—would refrain from doing so to prevent causing damage to others.)

The argument that the smoker has a chazakah is flawed, as well. There are many exclusions to the principle of chazakah, and a few apply to smoking. Smoking is an activity that is generally objectionable to society. Smoking is addictive, and though many may tolerate second-hand smoke on occasion, most object to being exposed to it constantly. In addition, the wafting smoke produced by the “social smoker” lingers in the air, so it’s as if it’s ongoing. Beside the foul odor affecting their property, it is bothersome to the neighbor personally, which is dealt with strictly in halachah (such as the directives in the Gemara relating to constructing an outhouse in close proximity to neighbors).This holds true regardless of how long the smoker had been smoking without reproach.

Besides, current scientific evidence shows that second-hand smoke poses a real bodily danger against which the victim has little recourse. This aspect of harchakas nezakim cancels out any assumption of implicit permission based on lack of complaints or the majority view of the other neighbors. The smoker must be held answerable to even the most sensitive fellow on the block!

https://halacha2go.com?number=714

Practical Halacha: One minute a day. By Horav Yosef Yeshaya Braun, shlita, Mara D'asra and member of the Badatz of Crown Heights.