July 3, 2008
On July 1, 2008, the Supreme Court of Rhode Island issued a decision holding that manufacturers of lead pigment are not liable under a nuisance theory for the harm caused from the use of lead paint. State of Rhode Island v. Lead Industries Association, Inc., — A.2d — (July 1, 2008 No. 2004-63-M.P., No. 2006-158-Appeal, No. 2007-121-Appeal (PC 99-5226)), available at http://www.courts.ri.gov/supreme/pdf-files/04-63_7-2-08.pdf (last accessed July 2, 2008). In this opinion, the Rhode Island Supreme Court continued the jurisprudential trend towards limiting nuisance law for allegedly toxic products.
In this case, the Attorney General on behalf of the State of Rhode Island filed suit against various former lead pigment manufacturers and the Lead Industries Association, a national trade association of lead producers formed in 1928, for the use of lead paint in buildings throughout Rhode Island, which has resulted in high rates of lead poisoning in Rhode Island children. Id. at 1 (slip op.). After the trial court denied the defendants’ motion to dismiss the state’s claims of public nuisance, the trial court held a four-month trial, which was the longest civil jury trial in the state’s history. The result was the first verdict in the nation imposing liability on lead pigment manufacturers for the creation of a public nuisance. Id. at 1-3.
On appeal, the Rhode Island Supreme Court reversed the trial court’s denial of the defendants’ motion to dismiss and held that “the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.” Id. at 4 (emphasis in original). Although the Supreme Court applied Rhode Island law in reaching this decision, it noted that its definition of public nuisance “largely is consistent with that of many other jurisdictions, the Restatement (Second) of Torts, and several scholarly commentators.” Id. at 22.
After discussing the evolution of nuisance law since its origins in twelfth-century English common law, the Supreme Court concluded that the state’s allegations against the lead pigment manufacturers have not alleged an interference with a public right. Id. at 35. “The term public right is reserved more appropriately for those indivisible resources shared by the public at large, such as air, water, or public rights of way.” Id. at 35-36 (citing City of Chicago v. American Cyanamid Co., 823 N.E.2d 126, 131, 139 (Ill. App. Ct. 2005). The “right of an individual child not to be poisoned by lead paint” is not a public right that may be pursued through the law of nuisance. Id. at 36.
As an independent basis for dismissing the complaint, the Supreme Court also held that the state “fail[ed] to allege any facts that would support a conclusion that defendants were in control of the lead pigment at the time it harmed Rhode Island’s children.” Id. at 38. The Court noted that nuisance law requires that the “defendant must have control over the instrumentality causing the alleged nuisance at the time the damage occurs.” Id. at 27 (emphasis in original). “Indeed, control at the time the damage occurs is critical in public nuisance cases, especially because the principal remedy for the harm caused by the nuisance is abatement.” Id. at 27. The required element of control is missing where the defendants are only alleged to have manufactured a product which later caused harm through its application. Id. at 27-30; but see County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App. 4th 292, 311 (2006) (allowing public nuisance claims seeking abatement of lead paint to proceed despite arguments that the lead pigment manufacturers “lack the ‘ability to abate’ . . . because they do not ‘own or control’ the buildings in which the lead is located”).
In rejecting the application of a nuisance theory to allegedly defective products, the Rhode Island Supreme Court relied upon the fact that “[t]he law of public nuisance never before has been applied to products, however harmful.” Id. at 40. Instead, the proper means of commencing a lawsuit against manufacturers of harmful products is through a products liability action and “allowing such a lawsuit [based upon nuisance] would circumvent the basic requirements of products liability law.” Id. at 40.
In a recent decision rejecting similar public nuisance claims brought against lead pigment manufacturers, the New Jersey Supreme Court also remarked that “[w]e cannot help but agree with the observation that, were we to find a cause of action here, ‘nuisance law would become a monster that would devour in one gulp the entire law of tort.’” In re Lead Paint Litigation, 924 A.2d 484, 505 (N.J. 2007) (quoting Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 540 (3d Cir. 2001)); see also City of San Diego v. United States Gypsum Co., 30 Cal. App. 4th 575, 586 (1994) (“[N]uisance cases ‘universally’ concern the use or condition of property, not products.”) (quoting Detroit Board of Education v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1992).
These recent decisions by the Supreme Courts of Rhode Island and New Jersey conflict with an earlier decision from the California Court of Appeal that held that county governmental plaintiffs could proceed with similar public nuisance claims seeking abatement from lead pigment manufacturers of the use of lead paint inside buildings. See Santa Clara, 137 Cal. App. 4th at 310-11. Distinguishing prior precedent that emphasized the importance of maintaining a distinction between nuisance and product liability claims, the court in Santa Clara held that a public nuisance cause of action could proceed where the plaintiffs sought abatement and alleged that the hazard was created through defendants’ “affirmative and knowing promotion of a product for a hazardous use[.]” Id. at 309 (allowing for “liability . . . premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create [which is] distinct [conduct] from and far more egregious than simply producing a defective product or failing to warn of a defective product”).
The recent decisions of Lead Industries Association and In re Lead Paint Litigation may signify a trend of courts looking with disfavor at the encroachment of nuisance law into claims traditionally governed by the more regimented requirements of products liability. These decisions may have important implications for other cases alleging nuisance theories against manufacturers of allegedly defective products.
Gibson, Dunn & Crutcher has particular expertise in environmental litigation, including nuisance actions, and also handles a range of other environmental and counseling matters nationwide. To learn more about the firm’s Environment and Natural Resources Practice, please contact the Gibson Dunn attorney with whom you work, Jeffrey D. Dintzer (213-229-7860, firstname.lastname@example.org) in Los Angeles, or Peter E. Seley (202-887-3689, email@example.com) in Washington, D.C.
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