ting phenomenon that merits further study. If some adults are willing to smoke outdoors in a Nordic climate, perhaps parents in warmer climes can be encouraged to follow suit.
Where appeals to good behaviour fail, legal remedies become necessary. As Ashley and Ferrence note, the United States has seen a rapid development of legal theories and judicial rulings that protect children from ETS. These include intervention by judges upholding the “best interest of the child” standard when ruling on child custody disputes between a smoking parent and a non-smoking parent.
A recent case in Tennessee, United States, for example, may illustrate an emerging interventionist trend. In that case, a couple’s divorce decree adopted a local rule stating that the parents will not expose their children to tobacco smoke in enclosed places or allow others to expose them to it. Within days of the final divorce decree, the child’s mother filed a motion for contempt against the father of the child, alleging that he smoked around the child and exposed her to ETS during his visitation. The trial court found him guilty of criminal contempt by exposing his child to cigarette smoke, sentenced him to two days of incarceration, and suspended his visitation rights until convinced that the father intended to protect his child from all exposure to tobacco smoke. The Tennessee Court of Appeals upheld the trial court’s decision, ruling that the father’s smoking jeopardised the child’s physical wellbeing.7
Another type of case represents a possible strategy that non-smoking parents in multiunit residential dwellings may pursue to protect their children from ETS. A non-smoking tenant in Ohio, United States, entered into a lease to reside on the top floor of a two-family dwelling. During the second year of a two-year lease, the landlord, a smoker, moved into the first-floor unit. Noting that smoke came into his unit from the common heating and cooling systems shared by the two units and that the smoke was causing him physical discomfort, the non-smoker wrote to the landlord. A month later, he vacated the premises and sued, alleging that the landlord had breached the covenant of quiet enjoyment and the statutory duties imposed on landlords (including doing “whatever is reasonably necessary to put and keep the premises in a fit and habitable condition”). The Court of Appeals reversed a dismissal of the case, concluding that there are “genuine issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant’s rental unit”.8
Additionally, Parmet et al9 have cited litigation that directly benefited children who brought an action under the public accommodation provisions of the Americans With Disabilities Act to get access to McDonald’s and Burger King restaurants in the United States.10 A similar case has been filed in 1998 in the state of Maryland against two large restaurant chains.11The theory behind these cases is that, under federal law, places that are open to the public must not have policies which discriminate against persons with disabilities. By permitting smoking in their restaurants, the plaintiffs allege, persons with respiratory disabilities are denied access and experience discrimination.
ETS litigation in the United States is maturing. In February 1998, the first wrongful death case involving ETS went to trial in Indiana12; the jury returned a verdict for the tobacco company defendants on 19 March 1998.13 The first phase of a class action suit brought by flight attendants exposed to ETS was settled in October 1997 for $300 million to fund tobacco-related medical research.14 These lawsuits and other similar cases slated for trial may also help send the message to parents that ETS exposure, particularly over time, does indeed pose a potentially grave threat to their children.
Legislation is also affecting how America deals with the issue of children and ETS. For example, it is already illegal under United States law to permit smoking in facilities that provide kindergarten, elementary, or secondary education, l