Shimp v. New Jersey Bell Telephone Company

Though the Shimp case established an employer's common law duty to protect employees from ETS, analysts have found that the cause of action in this case may be questionable. According to Vallone, as of 1993, Shimp was the only case to grant injunctive relief to a plaintiff under the common law theory. In a Washington Supreme Court case, McCarthy v. Department of Social & Health Services (1988), only four justices--a minority of the court--agreed that plaintiff could claim a common law right to protection from ETS. In a subsequent New Jersey case, Smith v. Blue Cross & Blue Shield of New Jersey (1983), the same court that had ruled on Shimp suggested that the Shimp decision required an employer to enact "Draconian measures" against smoking employees and that it imposed prohibitions that "are too sweeping and go well beyond what is necessary to ensure a safe working environment." Thus, Vallone concluded, "the only court that granted relief to an ETS victim under this [common law] theory later questioned the validity of the decision."

Other workers, though, later won damages (i.e., money settlements) against employers because of the harm resulting from ETS. And liability was broadened to include tobacco companies themselves as well as employers. In a 1991 class action suit, for example, airline flight attendants in the United States won a $300 million settlement against the tobacco industry for injuries caused by breathing ETS on planes. These suits, however, have been time consuming, costly to pursue, and difficult to prove. Because no other case has acknowledged a common law right to protection from ETS as of the late 1990s, and because of the uncertainties involved in statutory or regulatory claims, Vallone argued that workers' compensation laws may, if amended, provide a more efficient remedy for ETS complaints. Yet Shimp had not been overruled as of that time; its precedent establishing a common law right to protection from ETS, therefore, remained.