By JUDY SIEGEL-ITZKOVICHOrly Zilberschatz-Banai 248.88(photo credit: Haifa Theater)
To smoke, or not to smoke - onstage? That is the question for the Haifa District Court, which on Thursday morning received a request to certify as a class-action suit - reportedly the first in the world - a complaint filed against a theater for instructing an actress to smoke as part of her role.
The request was filed by lawyer Amos Hausner, chairman of the National Council for the Prevention of Smoking, on behalf of fellow lawyer and frequent theatergoer Einav Avrahami, who objected to famous actress Orly Zilberschatz-Banai smoking for about half an hour onstage in the play.
Highly praised by Israeli critics, the play is based on the work of American playwright David Mamet. Titled in Hebrew Hamakom Mimenu Bati, it tells the story of an American Jewish man named Bobby Gold who abandons his wife and his home to return to the old Jewish neighborhood where he was raised. Zilberschatz-Banai plays his long-suffering sister and delivers a long monologue during which she smokes.
The venue is the Haifa Municipal Theater hall - owned by the municipality - which by law is responsible for enforcing no-smoking laws in the city. This is a conflict of interest, argued Hausner in his application.
Hausner told the Post that lawsuits filed in the past by airline stewards and stewardesses - who were constantly exposed to deadly tobacco smoke when there was no legal ban in all sections of the world's airplanes - presented research showing that the stewards were 200 times more likely to develop lung cancer and other diseases due to smoke inhalation.
Hausner asked the court in this case to set the compensation for damages to the theater audience at NIS 1,000 each, or a total of NIS 4 million, as he calculated that some 3,800 spectators have seen or will see the play before the end of its run. Avrahami said she was fighting for a principle - that smoking in theaters has been illegal since 1983 and that the health not only of the audience but also of the actors who performed several times a day was at risk as they would be exposed to toxins. Because she was standing on principle, she said she personally was not asking for monetary compensation.
Three years ago, the Supreme Court awarded NIS 1,000 to one woman exposed to smoke at Focaccetta, a Jerusalem restaurant sued by concerned citizen Irit Shemesh, who was also represented by Hausner. Since then, much higher awards have been handed down by courts, including one in which the lawsuit was certified as a class action against the smoke-filled Tel Aviv club Bella Shlomkins.
Avrahami, who attended the play in the middle of October, argued that the director could easily have given Zilberschatz-Banai a harmless and smokeless substitute. But the theater - a small one with only 158 seats - refused to relent, said Avrahami, who received a letter to that effect from a theater official. Avrahami noted that when a play presents a murder, nobody is murdered to make it look realistic.
Hausner declared that the play's text presents a character as smoking, it did not require the actress or actor to actually light up a cigarette. When no-smoking laws are violated, it is a proper mechanism for the concerned citizen to initiate a court action, including class actions, the lawyer argued.
The Haifa Municipal Theater used a large photo of Zilberschatz-Banai smoking a lit cigarette and talking to a fellow actor at the top of the play's Web site as well.
The theater has not denied any of the allegations, but it claims that it should be exempted from observing the no-smoking provision due to its claim of "freedom of expression."
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