THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, January 31, 1995 TAG: 9501310351
SECTION: LOCAL PAGE: B6 EDITION: FINAL
DATELINE: VIRGINIA BEACH LENGTH: Short : 35 lines
A judge on Monday threw out a lawyer's claim that he deserved $50,000 in damages from Kmart after becoming sick in a local store from second-hand smoke.
Divorce lawyer Hilton Oliver filed the lawsuit against the Kmart Corp. in 1993, claiming the Pembroke department store was negligent in setting up a small smoking area near the store's entrance.
Oliver, 38, visited the store on Aug. 14, 1993, to buy toothpaste. He said he became sick for two days after inhaling smoke that had drifted from the smoking area into the adjacent pharmacy. A nurse testified that Oliver is allergic to cigarette smoke.
Oliver is president of Virginia G.A.S.P. - Group to Alleviate Smoking in Public - which fights to stop smoking in stores, restaurants and other public buildings.
Kmart claimed it had followed state and city laws in setting up the smoking area. The law requires that smoking areas be separate from public areas ``to the extent reasonably practicable.''
On Monday, Circuit Court Judge Alan Rosenblatt stopped the jury trial after Oliver rested his case, and before Kmart could put on its defense. Rosenblatt ruled that Oliver had not presented enough evidence to prove his case.
Afterward, Oliver said that despite the outcome, he and other G.A.S.P. members will file ``more lawsuits of this kind.''
KEYWORDS: LAWSUIT SMOKING by CNB