First trial on assault by secondhand smoke set for April.

A California woman who claims that secondhand smoke in her office exacerbated her asthma has won the right to sue her former employer for assault and battery. The trial, believed to be the first of its kind, is scheduled to begin next month.

Andrea Portenier, formerly an insurance broker with Republic Hogg Robinson, Inc., in Los Angeles, alleged that the company failed to enforce its anti-smoking policy or to move her promptly to a smoke-free office after she complained about the smoke. Last fall, Los Angeles County Superior Court Commissioner Emilie Elias denied the company's request for summary judgment. She ruled that Portenier's assault and battery claim was not barred by state workers' compensation law. (Portenier v. Republic Hogg Robinson, Inc., No. BC028990 (Cal., Los Angeles County Super. Ct. Oct. 13, 1993).)

Elias agreed with Portenier's argument that her exposure to secondhand smoke was outside the scope of her employment. The tools of her trade did not pertain to cigarette smoke," said her attorney, Larry Minsky of Long Beach. "There was nothing in her contract of employment that dealt with cigarette smoke."

The company - now known as Hogg Robinson Insurance Brokers, Inc. - asked the appeals court to review Elias's decision, but the court declined.

Minsky said Portenier presented her supervisors with a note from her doctor in March 1990 saying that she should be moved to a smoke-free environment because secondhand smoke was aggravating her asthma. How the company responded over the next several months is disputed. In November 1990, Portenier was moved to an enclosed office.

Her exposure continued because other employees smoked elsewhere in the building in violation of the company's antismoking policy, Minsky said. "Management did little or nothing" to enforce the policy, he added, and Portenier resigned in 1992.

There is little precedent to guide courts considering whether workers can sue their employers for assault and battery by secondhand smoke. Only two appellate courts have ruled on the issue.

In 1979, the North Carolina Court Appeals upheld the dismissal of an assault and battery claim based on exposure to cigar smoke. The court ruled that the exposure did not constitute assault and battery because there was no evidence that the smoke had made the plaintiff physically ill. However, the court said, "we express no opinion as to what the result would be if there were evidence of some physical injury." (McCracken v. Sloan, 252 S.E.2d 250, 252 (N.C. Ct. App. 1979).)

Last year, the Georgia Court of Appeals allowed an assault and battery claim to proceed, holding that the workers' compensation law did not bar the suit. (Richardson v. Hennly, 434 S.E.2d 772 (Ga. Ct. App. 1993).) The Georgia Supreme Court was scheduled to hear oral arguments in that case in February.