THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, February 3, 1995 TAG: 9502020147
SECTION: VIRGINIA BEACH BEACON PAGE: 10 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Medium: 68 lines
A lawyer who sued Kmart after becoming sick from a customer's second-hand cigarette smoke at the Pembroke store has lost his $50,000 lawsuit against the Kmart Corp.
A judge ruled Monday that divorce lawyer Hilton Oliver, 38, did not present enough evidence to support his claim that the store was negligent.
Circuit Judge Alan Rosenblatt stopped the jury trial after one day - after Oliver presented his evidence, but before Kmart presented its defense.
Oliver claimed he became sick for two days after visiting the store Aug. 14, 1993, to buy toothpaste. A nurse testified that Oliver is allergic to cigarette smoke. Oliver testified that the smoke drifted from a small designated smoking area near the store's entrance to the adjacent pharmacy department, where he was shopping.
On Monday, Rosenblatt ruled that Oliver had presented ``absolutely no evidence'' that the smoking area was in violation of city and state law. By law, a store can create a smoking area only if it is separate from public areas ``to the extent reasonably practicable.''
Oliver argued that the smoking area - two or three benches near the store's entrance - was illegal because there was no wall separating it from the shopping area.
``The worst place to put it is right inside the front door,'' where all customers must pass, Oliver argued.
But Kmart's lawyer argued that the smoking area is perfectly legal and proper. ``The statutes are not intended to prevent any possible exposure'' to smoke, only to balance the rights of smokers and non-smokers, said attorney William Dudley.
Rosenblatt also ruled against Oliver on another point: He said Oliver was partly responsible for his own injury because he knew that Kmart had a smoking area near the entrance and he might expose himself to smoke.
``The plaintiff was very familiar with the store,'' the judge said. ``He knew where the designated smoking area was.''
At the start of the trial, Rosenblatt also ruled against Oliver on an important procedural point: He said Kmart could bring up Oliver's background as an anti-smoking activist to try to discredit him. Oliver is president of Virginia GASP, or Group to Alleviate Smoking in Public.
``They want to persuade the jury that I'm a fanatic, that I'm here today for a stunt,'' Oliver told the judge.
Dudley replied, ``His goal in this case in not a personal injury (claim). It is to advance a social agenda.''
The judge ruled that Oliver's background was fair game. ``I'm afraid by filing this suit and making yourself a plaintiff you have put yourself on trial,'' Rosenblatt told Oliver.
Throughout the trial, Oliver acted as his own attorney and presented only two witnesses: himself and an allergy nurse who had treated him for allergies unrelated to tobacco smoke.
He did not present any expert witnesses on the legality of the smoking area, on the harmful effects of tobacco smoke, or on how he became sick at the store.
After the judge ended the trial, Oliver said he and other anti-smoking activists intend to file ``more lawsuits of this kind.'' ILLUSTRATION: Staff photo by PETER D. SUNDBERG
Hilton Oliver is president of Virginia GASP.
KEYWORDS: LAWSUIT SMOKING KMART by CNB