Shimp v. New Jersey Bell Telephone Company

The court found that the affidavits from the plaintiff's attending physicians confirmed her medical sensitivity to tobacco smoke. Furthermore, Justice Gruccio cited evidence from the 1970 Public Health Cigarette Smoking Act and from the 1975 HEW report, The Health Consequences of Smoking, documenting the toxic nature of cigarette smoke. He further noted that the surgeon general's 1972 report of the same title demonstrated that the presence of cigarette smoke increased the carbon monoxide level and added tar, nicotine, and the oxides of nitrogen to the air. Affidavits from several other health professionals, including researchers and specialists in the fields of cancer, cardiovascular disease, allergies, and industrial and occupational medicine, further documented the adverse effects of ETS. "The evidence is clear and overwhelming," wrote Justice Gruccio. "Cigarette smoke . . . [creates] a health hazard not merely to the smoker but to all those around her who must rely on the same air supply." Taking judicial notice of the toxic nature of cigarette smoke, he ordered New Jersey Bell Telephone Company "to provide safe working conditions for plaintiff by restricting the smoking of employees to the non-work area presently used as a lunchroom."

In his analysis, Justice Gruccio stressed two important distinctions between Shimp's claim and that brought in Canonico v. Celanese Corp. of America (1951). In that case, the plaintiff sought damages after contracting an illness allegedly resulting from the inhalation of cellulose acetate dust in the workplace. The trial judge dismissed the case, and this decision was upheld on appeal. The dust inhaled by the plaintiff, the courts found, was the necessary by-product of the manufacturing process in which he was employed--in other words, the product could not be produced without creating the dust. The courts therefore ruled that breathing these particles should be considered a risk assumed knowingly by the employee as an "ordinary incident to his employment." Furthermore, the trial judge found no convincing evidence that the cellulose acetate dust was toxic or that the plaintiff's illness was caused by breathing this substance. In Shimp, however, the court found that cigarette smoke was not related in any way to the work done at New Jersey Bell Telephone Company and "cannot be regarded as an occupational hazard which plaintiff has voluntarily assumed in pursuing a career as a secretary." Second, the health hazards of secondary smoke have been well documented. Thus, the court determined that "employees' right to a safe working environment makes it clear that smoking must be forbidden in the work area."