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Home , Nuisance, Peace (law), Product liability, Public nuisance

Public : Resistance to Expansive New Theories By Jill D. Jacobson and Rebecca S. Herbig

n the eternal struggle by plaintiffs’ The Restatement defines public nui- This definition does nothing to clear to stretch the law to fit their sance as follows: up the “impenetrable jungle” of public I clients’ cases, law nuisance law. Indeed, creative lawyers has quite a history. Over the past few (1) A public nuisance is an unrea- have used the Restatement’s ambiguity to decades, plaintiffs’ lawyers have tried to sonable interference with a right broaden the factual circumstances that broaden the meaning of the term “public common to the general public. will satisfy the essential elements. nuisance” to include a (2) Circumstances that may sustain now interpret the Restatement as laying for any harm caused to citizens on a a holding that an interference out four distinct elements: the existence of broad scale. The most recent area of law with a public right is unreason- a public right, a substantial and unreason- to suffer from these is product able include the following: able interference with that right, proximate liability. In response, the (a) whether the conduct involves , and injury.2 These elements and has been vigilant and has stood strong a significant interference others suggested by additional against these attacks. with the public health, the are discussed in turn below. The modern concept of a public public safety, the public nuisance cause of action is addressed in , the public comfort or Interference with a Public Right section 821B of the Restatement (Sec- the public convenience, or To be actionable as a public nuisance, an ond) of . While section 821B was (b) whether the conduct is act must interfere with a “right common being drafted, a disagreement arose as to proscribed by a , to the general public.” This requirement is the scope of public nuisance law. Dean ordinance or administrative used to distinguish public nuisance from Prosser pushed to limit public nuisance to , or private nuisance. It is only those rights its historical roots (e.g., actions to viola- (c) whether the conduct is of a that are common to the general public, tions of criminal ), while activists continuing nature or has pro- and not merely some group of individuals urged for the expansion of the definition duced a permanent or long (albeit large in number), that are protected of public nuisance to include environmen- lasting effect, and, as the by an action for public nuisance. tal harms. Today’s vague definition was actor knows or has reason to The comments to the Restatement the unfortunate result of a compromise know, has a significant effect (Second) of Torts provides some guidance between these competing interests.1 upon the public right. on this element, clarifying that “[t]here

Public Nuisance in Historical Context

Public nuisance law has been therefore punishable as a criminal N.E.2d 159 (Ill. 1982). described as an “impenetrable jungle” offense.v Over time, however, public ii. See, e.g., H. Wo o d , A Pr a c t i c a l Tr e a t i s e o n that “elude[s] precise definition” and nuisance law has become a more t h e La w o f Nu i s a n c e s § 1, at 1–3 (3d ed. 1893). is more easily “negatively defined” by flexible remedy used to protect rights iii. Id. contrast to other types of actions.i common to the public, including iv. See, e.g., Rhode Island v. Lead Indus. Very generally, a public nuisance is an “roadway safety, air and water Ass’n, 951 A.2d 428, 444 (R.I. 2008) (quoting unreasonable use by a person of his or pollution, , and Donald G. Gifford, Public Nuisance as a Mass her own that works to injure public health.”vi Eventually, public Products Liability Tort, 71 U. Cin. L. Re v . 741, the rights of the public.ii “It is a part nuisance became a cause of action 790–91, 793–94 (2003)). of the great social compact to which that also gave private citizens v. Re s t a t e m e n t (Se c o n d ) o f To r t s § 821B cmt. a, every person is a party.”iii standing to bring claims if they simply at 87 (1979). In its earliest form, public nuisance demonstrated that they had suffered vi. Rhode Island, 951 A.2d at 444 (quoting was a criminal cause of action used to a “special” or “particularized” injury.vii Richard O. Faulk and John S. Gray, Alchemy in abate activities that were considered the Courtroom? The Transmutation of Public to be to the common Endnotes Nuisance Litigation, 2007 Mi c h . St. L. Re v . 941, iv and public welfare. Such activities i. W. Pa g e Ke e t o n e t a l ., Pr o s s e r & Ke e t o n o n 951 (2007)). were thought to be violations of the t h e La w o f To r t s § 86, at 616 (5th ed. 1984); vii. Re s t a t e m e n t (Se c o n d ) o f To r t s § 821B cmt. rights of the Crown, and they were City of Chicago v. Festival Theatre Corp., 438 a, at 87–88.

Published in Mass Torts, Volume 8, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written of the American Bar Association. must be some interference with a public One of the factors defining an unrea- the chain of causation, not merely that right . . . [that] is common to all members sonable interference is the violation of a lack of control bars plaintiff’s claim. of the general public. It is collective in statute or regulation. Unfortunately for nature and not like the individual right manufacturers, these statutes or regula- Environmental Cases that everyone has not to be assaulted tions themselves often use the term “pub- The is still out on whether the draft- or defamed or defrauded or negligently lic nuisance” in a broad-sweeping manner ers of section 821B crafted an effective injured.”3 This last sentence is key and that is not intended to provide fodder for compromise. Results in the environmen- is to remind courts that causes of action these types of suits. Defendants must re- tal arena have certainly been mixed. For that sound in are not properly sist attempts to equate the use of the term example, in 1971, the California of brought as actions for public nuisance. “public nuisance” in a statute or regula- Appeal struck a blow on the environmen- Finally, the injury actually sustained tion with the elements required by a cause tal front by denying class certification in (and not merely the right) must be com- of action for public nuisance. a suit against 293 corporations for air mon to the general public. This require- On the other hand, the Restatement’s pollution in Los Angeles premised on ment is also pivotal in comments provide support for the argu- public nuisance law.10 However, environ- cases. A defective product harms only ment that compliance with statutes or reg- mentalists were later successful in forcing those persons who purchase and use ulations makes activity per se reasonable.6 a significant based on public the product. Although, at times, these Therefore, in suits that involve an activity nuisance liability in the famous case products may be used on a broad scale, that is regulated by the federal government involving the Love Canal. there is nonetheless only a discrete group (e.g., automobile manufacture and safety), In the last decade, manufacturers of the of persons who are within the sphere of there is a strong argument that compli- gasoline additive methyl tertiary butyl ether harm. Therefore, products will generally ance with the applicable bars a (MTBE) became the target in this realm not interfere with a public right. cause of action for public nuisance. of law. MTBE is an oxygenate once used Specifically, courts have been cautious A public nuisance substantially in gasoline to help it burn more cleanly not to recognize broad public rights that interferes with a public right and causes and more efficiently.11 In 1979, the U.S. would implicate any potentially danger- unreasonable harm. It is not sufficient Environmental Protection Agency (EPA) ous instrumentality. For example, in a that the interference causes only an an- approved MTBE’s use as a gasoline com- recent case regarding whether the sale of noyance or disturbance of everyday life.7 ponent, and manufacturers began using firearms, eventually used to commit ille- it instead of another component that had gal , interfered with a public right, Control of the Nuisance been identified as an air pollutant. In 1990, the court refused to expand the concept Some courts have held that a public amendments to the Clean Air Act required of public rights to encompass the right of nuisance cause of action requires that the the use of oxygenates such as MTBE. a citizen not to be victimized by .4 defendant have control over the instru- Starting in 1998, many states around mentality alleged to have created the the country filed suits alleging that Unreasonable Interference nuisance at the time injury occurred.8 Such MTBE is a defective product and that its Not every interference with a public a requirement is logical, considering that use creates a public nuisance. MTBE can right will constitute a public nuisance. plaintiffs in these causes of action general- leak into the water supply from under- Specifically, the interference must be ly seek abatement of some certain activity, ground storage tanks at gas stations. En- unreasonable. The Restatement (Sec- which cannot be satisfied by a defendant vironmentalists have argued that MTBE ond) of Torts lists specific factors to without control over the nuisance. has health-related risks, although the EPA be considered in determining whether Some courts, however, have refused to has concluded that there is not enough conduct is an unreasonable interference find a control requirement, finding that available data to consider MTBE a risk at (e.g., significant interference with public it is not an element of public nuisance low exposure levels in drinking water.12 health, safety, peace, comfort). but merely a relevant factor in assess- Many of the MTBE cases were As with any reasonableness analy- ing or . For consolidated by the Judicial Panel for sis, foreseeability must be considered example, in a case involving the manufac- Multidistrict Litigation and transferred in determining whether the harm is ture of firearms, one court has found that to the Southern District of New York, “unreasonable.” Plaintiffs typically will “[c]ontrol is not a separate element of referred to as MDL 1358. In 2002, the be required to prove that it was foresee- causation in nuisance cases that must be court dismissed a number of the claims able that a defendant’s conduct would pleaded and proven. . . . It is, rather, a rel- brought by well owners who simply al- create the alleged public nuisance. On evant factor in both the proximate cause leged that their wells were “threatened” this basis, some courts have held that a inquiry and in the ability of the court to for failing to state a cause of action.13 third-party user’s illegal use of a product fashion appropriate injunctive relief.”9 In The court then denied class certification (e.g., firearms) is not foreseeable, thereby cases involving products, therefore, the to the remaining plaintiffs, finding that precluding liability of the manufacturer fallback defense argument is that lack of the requirements of Federal Rule of for the nuisance caused by crime.5 control over the product after sale breaks 23 had not been met.14

Published in Mass Torts, Volume 8, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Nonetheless, during the early to mid- exposure programs or lead paint abate- the plaintiff should have brought from 2000s, more cases were filed and trans- ment. Last year, the Supreme Court of public nuisance, both in terms of the ele- ferred to the Southern District of New Rhode Island struck a huge blow against ments and the purpose of each. York as MDL 1358 II. Over the past their validity, overturning the first few years, settlements were reached in against lead paint manufacturers.20 Jill D. Jacobson is co-managing partner and many of these cases. However, a number In Rhode Island v. Lead Industries Rebecca S. Herbigis a senior assocate at the of defendants, including Exxon Mobil Ass’n, a jury entered a verdict for plaintiffs Richmond office of Bowman and Brooke. Corporation, still have public nuisance after a four-month , the longest civil cases pending on the court’s docket. in Rhode Island’s history. One of the issues on appeal was the liability of Endnotes Product Liability Cases the defendants on the plaintiffs’ cause of 1. Donald G. Gifford, Public Nuisance as Product manufacturers have not been action for abatement. The Supreme Court a Mass Products Liability Tort, 71 U. Ci n . L. immune to public nuisance claims. In of Rhode Island overturned the verdict, Re v . 741, 806–7 (2003). the 1980s and 1990s, suits were brought ruling that the trial court erred by denying 2. City of Chicago v. Beretta U.S.A. Corp., against manufacturers of products con- the defendants’ motion to dismiss. Specifi- 821 N.E.2d 1099, 1113 (Ill. 2004). taining asbestos, alleging that asbestos cally, the court found that the defendants 3. Re s t a t e m e n t (Se c o n d ) o f To r t s 821B created a public nuisance that affected the had never interfered with a public right at cmt. g. public’s right to health or safety.15 Most nor were they in control of the lead pig- 4. City of Chicago, 821 N.E.2d at 1116. cases were dismissed either because the ment at the time of injury. 5. See, e.g., id. at 1126–27, 1132–38. court found that the manufacture of a le- The court’s opinion provides a thor- 6. Re s t a t e m e n t (Se c o n d ) o f To r t s gal product is not the same as the creation ough history and analysis of the elements § 821B cmt. f. of a nuisance or because the court found of public nuisance. Integral to the court’s 7. Wi ll i a m L. Pr o s s e r, Ha n d b o o k o f t h e that a public nuisance claim requires the finding was that the “right of an indi- La w o n To r t s § 71, at 557–58 (1st ed. 1941). defendant to have control of the product vidual child not to be poisoned by lead 8. See, e.g., Rhode Island, 951 A.2d at 446. at the time of the nuisance’s creation.16 paint” does not constitute a right relative 9. City of Chicago, 821 N.E.2d at 1132. The next product to be targeted by the to the public’s right to health, safety, 10. Diamond v. Gen. Motors Corp., 20 plaintiffs’ bar was tobacco. In an peace, comfort, or convenience. The Cal. App. 3d 374 (Cal. Ct. App.1971). to avoid causation requirements and court was concerned by the effect of any 11. What is MTBE?, www.mtbelitigationinfo affirmative defenses that would gut their other finding, cautioning that “[w]ere we .com/external/?fuseaction=external.docview& case, the plaintiffs’ bar began to argue to hold otherwise, we would change the cid=942&documentID=72925 (last visited that tobacco manufacturers were liable meaning of public right to encompass all May 26, 2009). under a public nuisance theory.17 Only behavior that causes a widespread inter- 12. Overview—Methyl Tertiary Butyl one of these cases, however, was ever ference with the private rights of numer- Ether (MTBE)—US EPA, www.epa.gov/mtbe. adjudicated, with the court refusing to ous individuals.” Specifically, the court faq.htm#concerns (last visited June 1, 2009). extend the theory of public nuisance.18 noted that “public nuisance and product 13. MDL 1358, www.mtbelitigationinfo.com/ Gun manufacturers were the next liability are two distinct causes of action, go/doc/942/76134 (last visited May 26, 2009). industry targeted. In City of Chicago v. each with rational boundaries that are 14. See In re Methyl Tertiary Butyl Ether Beretta U.S.A. Corp., plaintiffs sought not intended to overlap.”21 Prods. Liab. Litig., 209 F.R.D. 323 (2002). and permanent injunc- 15. Victor E. Schwartz & Phil Goldberg, The tive relief from gun manufacturers to Conclusion Law of Public Nuisance: Maintaining Rational abate the alleged public nuisance of gun Plaintiffs have attempted to use public Boundaries on a Rational Tort, 45 Wa s h b ur n L. violence. The court, “reluctant to recog- nuisance law to evade the requirements J. 541, 553 (2006); Gifford, supra note 1, at 751. nize a public right so broad and unde- of other causes of action for almost half 16. See, e.g., City of San Diego v. U.S. Gyp- fined that the presence of any potentially a century. In the vast majority of cases, sum Co., 35 Cal. Rptr. 2d 876 (Cal. Ct. App. dangerous instrumentality in the com- courts have barred such suits. However, 1994); Tioga Pub. Sch. Dist. No. 15 of Williams munity could be deemed to threaten it,” that is not always the case, and defendants County, N.D. v. U.S. Gypsum Co., 984 F.2d 915, ruled that there was no public right to be must remain prepared to resist expansive 920–21 (8th Cir. 1993); Corp. of Mercer Univ. free from the threat of crimes.19 new theories presented under the guise of v. Nat’l Gypsum Co., No. 85-126-3-MAC, 1986 More recently, public nuisance claims public nuisance. For example, recent cases WL 12447, at *6 (M.D. Ga. Mar. 9, 1986). have been brought against lead paint filed in some parts of the country against 17. Gifford, supra note 1, at 759. manufacturers. Much like the suits financial institutions allege that the insti- 18. Texas v. Am. Tobacco Co., 14 F. Supp. brought against asbestos manufacturers tutions have created a public nuisance by 2d 956 (E.D. Tex. 1997). decades ago, these suits have targeted offering subprime mortgage loans. The 19. City of Chicago, 821 N.E.2d at 1116. manufacturers of lead paint, seeking key to defending a public nuisance action 20. See generally Rhode Island, 951 A.2d 428. reimbursement for the costs of lead is to distinguish the actual cause of action 21. Id. at 443–52, 453–54.

Published in Mass Torts, Volume 8, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.