Tomorrow, a new law takes effect in New York City that prohibits smoking in parks and pedestrian plazas. (Click here for the text of the bill passed by the City Council, and here for the law it has amended, N.Y.C. Admin. Code § 17-503.) This legislation is the newest of numerous smoking bans enacted by state and local governments across America. (Click here for a list of U.S. smoking bans.) Some cities in California have even gone so far as to prohibit smoking in any public areas, including streets and sidewalks. (Click here for the El Cajon smoking ordinance, and here for that of Loma Linda.) Opponents of such laws argue that they infringe on the individual liberties of smokers, while proponents, on the other hand, say they are concerned for the public health. For some legal analysis of such legislation, see Patrick Kabat, “Till Naught But Ash Is Left To See”: Statewide Smoking Bans, Ballot Initiatives and the Public Sphere, 9 Yale J. Health Pol’y, L. & Ethics 128 (2009) (earlier version available here); Justin C. Levin, Protect Us Or Leave Us Alone: The New York State Smoking Ban, 68 Alb. L. Rev. 183 (2004) (available here).
In contrast to the American legislative response to the health concerns of second-hand smoke, which focuses on the effect on the public, some halachic authorities go one step further and prohibit smoking in public places even if it would cause harm or discomfort to an individual. Rabbi Moshe Feinstein (Igros Moshe, Choshen Mishpat, vol. 2 § 18) addressed the following question:
Can members of a kollel smoke in the shul or beis hamedrash in which they learn and daven if there are other kollel members who cannot bear the smoke and who become physically ill from inhaling it?
In his response, Rabbi Feinstein noted that this question raises two issues. First even if a non-smoker would not become sick from the smoke, but would only be physically uncomfortable, there would still be reason to prohibit a smoker from smoking in the presence of a non-smoker. He derives this ruling from the following story in the Gemara (Bava Basra 22b-23a): On Rav Yosef’s there were small date palm trees. His neighbors were bloodletters who would perform their services on their own property, but in close proximity to Rav Yosef’s trees. As a result, ravens, which were attracted to the blood, would come and sit in the trees and cover the dates with blood. Rav Yosef ruled that the bloodletters were not allowed to continue their practice, because the ravens caused him discomfort. The Rishonim (early talmudic commentators) elaborate upon the nature of Rav Yosef’s discomfort. Either he was bothered by the incessant noise of the ravens, or he was disgusted by the fact that his fruits were covered with blood (even though he could wash them before he ate them). Tosafos, Bava Basra 23a, s.v. Kekutra; Rambam, Mishneh Torah, Hilchos Shecheinim, ch. 11 § 5. Regardless of Rav Yosef’s reason for feeling discomfort, it is clear from this source that even though an average person would not necessarily feel the same discomfort, any individual has a right to protest against actions of his neighbor that bother him.
Thus, Rabbi Feinstein concluded that since the non-smokers are discomforted by the smoke, the smokers may not smoke in their presence. Although the source of this ruling (the story of Rav Yosef) involved an individual on his own property, nevertheless, since smoke is unbearable to those who are bothered by it, this prohibition would apply even in public places. See Tzitz Eliezer, vol. 15 § 39, quoting the Chazeh HaTenufah (a student of the Rosh); see also Shulchan Aruch, Choshen Mishpat § 155. Furthermore, even if a non-smoker had attempted to bear his discomfort until now, he may protest to the smoking at any time. Tzitz Eliezer, ad loc.
Moreover, the question of smoking in public areas raises a second issue: Are the smokers liable for the physical damages that they cause to the non-smokers by smoking in their presence? Rabbi Feinstein reasoned that smoking is considered “mazik beyadayim“––an act that directly causes damage, for which one may be liable to compensate his victim. It is not a mere “grama“––an indirect act which does not give rise to tort liability. This is because the smoker actively creates the second-hand smoke. Although a contemporary beis din may not have jurisdiction over such a claim (because of the discontinuance of true semicha––ordination), nevertheless, the tortfeasor would still be liable in the eyes of Heaven.