About Usauthors: Steven P. Benenson & Borden R. Gillis
Summary Introduction
In in re Lead Paint Litigation, 191 N.J. 405 (2007), the New Jersey Supreme Court held that various governmental entities did not state a viable common law nuisance claim for economic or personal injury damages against the former manufacturers of lead paint and pigment. The Court ruled that: 1) the conduct of land owners that fail to maintain their properties, rather than the remote conduct of the manufacturers of lead pigment paint that sold a lawful and then unregulated consumer product, was the proximate cause of any injury to the public good; 2) the plaintiffs, as public entities, lacked standing to sue for damages; and 3) permitting such claims would defeat the legislative purposes of New Jersey’s Lead Paint Act (“LPA”)1 and Products Liability Act (“PLA”)2, the latter of which is the exclusive remedy for harm caused by a defective product.3
Index
1. Case Background
2. Common Law Public Nuisance in New Jersey
3. Conflicts with the Lead Paint Act
4. Conflicts with the Products Liability Act
5. Conclusion
1. Case Background
Twenty-six municipalities and counties sued the former manufacturers and distributors of lead pigment paints to recover damages for the costs of detecting and removing it from homes and buildings; the cost of providing medical care to residents suffering from lead poisoning; and funding for educational programs about the dangers of lead paints.4 Plaintiffs originally asserted claims for fraud, public nuisance, unjust enrichment, civil conspiracy, and indemnification.5
The trial court granted defendants’ motion to dismiss the complaints for failure to state a claim.6 The Appellate Division reversed.7 The New Jersey Supreme Court granted defendants’ petition for certification to address whether New Jersey recognized a cause of action for damages arising from public nuisance at common law and whether, if permitted, such claims would conflict with the Legislature’s intent as expressed in the LPA and the PLA.
2. Common Law Public Nuisance in New Jersey
The Supreme Court rejected plaintiffs’ claim that New Jersey does, or should, recognize a cause of action for public nuisance for damages arising from the use of ordinary unregulated consumer products. After an extensive discussion about the historical rationale for common law public nuisance claims in New Jersey,8 the Court identified three “time-honored” principles that define the boundaries of this cause of action.9 First, a public nuisance, by definition, is related to conduct, performed in a location within the actor’s control that has an adverse effect on a common right. Second, private parties may only seek money damages for public nuisance if they suffered a special injury. Third, a public entity that proceeds against one in control of the nuisance may only seek the remedy of abatement.10
Although the Court acknowledged that the LPA declares that “the continuing presence of lead paint in homes qualifies as an interference with a common right sufficient to constitute a public nuisance,”11 it also determined that “the conduct that has given rise to the public health crisis is, in point of fact, poor maintenance of premises” and not the manufacture of the products themselves.12 Thus, both common law nuisance and the LPA focus on the conduct of premises owners as the “relevant actors”13 from whom recovery may be sought.14 As such, “the very meaning of the conduct in the public nuisance realm is separate, and entirely different, from the only conduct of these defendants.”15 The Court observed that:
Fundamental to this aspect of our analysis is the fact that we here address an ordinary unregulated consumer product that defendants sold in the ordinary course of commerce. In public nuisance terms, then, were we to conclude that plaintiffs have stated a claim, we would necessarily be concluding that the conduct of merely offering an everyday household product for sale can suffice for the purpose of interfering with a common right as we understand it. Such an interpretation would far exceed any cognizable cause of action.16
The Court, thus, concluded that the governmental entities’ suits against the product manufacturers “would separate conduct and location and thus eliminate entirely the concept of control of the nuisance.”17 Because the common law and LPA both focus on the conduct of the premises owners who have control over the condition and maintenance of lead paint, the Court recognized that a “product-based” theory of public nuisance would sever this essential link and result in a novel cause of action.
The Court also determined that plaintiffs – in their capacity as public entities – did not have standing to bring actions for damages.18 Although as “public entities,”19 plaintiffs had standing to vindicate a common right, they could only pursue either criminal penalties or civil actions to abate the nuisance. “The damage award…is limited to the extent of the special injury sustained by the private plaintiff, and is not a remedy available to a public entity plaintiff to the extent that it acts in the place of the sovereign.”20 Thus, although nuisance allows for both public and private recovery, “[t]he only basis for recovering a damages remedy arises in the context of a private right for public nuisance.”21
3. Conflicts with the Lead Paint Act
The Court rejected plaintiffs’ expansive and unrefined theory of common law public nuisance because it directly conflicted with the statutory scheme embodied in the LPA. Although the Court recognized that the LPA incorporated public nuisance concepts, it determined that the Legislature did not intend to create new and broader causes of action. “We do not understand the Legislature, in its careful approach to the lead paint problem, to have intended to sanction a tort-based theory of recovery essentially devoid of any of the tort’s historical meaning.”22
The Court found it particularly significant that – similar to common law public nuisance – the LPA places the financial burden of remediation and abatement on the property owner, not on the manufacturers of the products that require abatement.23 The Court then reasoned that the parties’ arguments regarding the viability of the nuisance cause of action had to be evaluated in light of this statutory framework. In this context, the meaning attached to the term “public nuisance” by plaintiffs would do violence to the common law underpinnings of the cause of action and the purpose of the LPA. Accordingly, the Court reasoned that:
[O]ur Legislature’s use of the term “public nuisance” in the Lead Paint Act is in keeping with the term’s historical meaning and intent. As a consequence, were we to agree with the Appellate Division that there is a basis sounding in public nuisance for plaintiffs’ assertions, we would be creating a remedy entirely at odds with the pronouncements of our Legislature.24
4. Conflicts with the Products Liability Act
The Court similarly rejected plaintiffs’ theory because it would “create a cause of action entirely inconsistent with the PLA’s comprehensive legislative scheme.”25 The Court recognized that the PLA embodied “one unified, statutorily defined theory of recovery for harm caused by a product”26 and further observed that “[t]he language chosen by the Legislature in enacting the PLA is both expansive and inclusive, encompassing virtually all possible causes of action relating to harms caused by consumer and other products.”27
As such, the Court concluded that the PLA “encompasses both the product at issue here and the harms that plaintiffs attribute to those products.”28 Moreover, “[t]he central focus of plaintiffs’ complaints is that defendants were aware of the dangers associated with lead – and by extension, with the dangers of including it in lead paint intended to be used in homes and businesses – and failed to warn of those dangers.”29 This “inescapable fact” demonstrated that plaintiffs’ claims fell squarely within the “classic articulation of tort law duties” included in the PLA.30
The Court also rejected plaintiffs’ argument that they could proceed with their public nuisance claims because such claims fell within the so-called “environmental tort exception” to the PLA,31 which applies when the cause of the alleged harm is exposure to toxic chemicals or substances.32 Noting that the PLA specifically provides that “environmental tort action … does not mean actions involving…products intended for personal consumption or use,”33 and reviewing situations where the exception had been applied, the Court reasoned that nothing in the PLA’s legislative history suggested that lead based paint that was sold directly to consumers for use in homes and buildings was meant to be excluded from the PLA’s comprehensive scheme.34 Instead, the Court determined that the environmental tort exception was narrow and is only meant to be applied in cases where contamination of ambient air, bodies of water, or workplace environments is at issue.35
5. Conclusion
The New Jersey Supreme Court, in rejecting plaintiffs’ unprecedented public nuisance claims, preserved well-accepted common law rules and protected the legislative intent of two comprehensive statutory schemes. As the Court aptly noted:
[T]he suggestion that plaintiffs can proceed against these defendants on a public nuisance theory would stretch the theory to the point of creating strict liability to be imposed on manufacturers of ordinary consumer products which, although legal when sold, and although sold no more recently than a quarter of a century ago, have become dangerous through deterioration and poor maintenance by the purchasers.36
The Court concluded that if it were to recognize a cause of action in this case, nuisance law “‘would become a monster that would devour in one gulp the entire law of tort.’”37
Resources
1. N.J.S.A. 24:14A-1 through 12.
2. The N.J.P.L.A. is codified at N.J.S.A. 2A:58C-1 through 7.
3. 191 N.J. at 413.
4. Id. at 408-409.
5. Id. at 409.
6. Id. at 410.
7. Id. at 411-413.
8. Id. at 422.
9. Id. at 429.
10. Id. at 430-431.
11. Id. at 432.
12. Id. at 433.
13. Id.
14. Id. at 432-33.
15. Id. at 433-34.
16. Id. at 432.
17. Id. at 433.
18. Id. at 432.
19. The Court also noted that, to the extent that plaintiffs had standing to pursue such claims as “private persons,” their claims would still fail because they could not identify any special injury different in kind from those suffered by the public at large. 191 N.J. at 436.
20. 191 N.J. at 434-35.
21. Id.
22. Id. at 431.
23. Id. at 421-22.
24. Id. at 422.
25. Id. at 439.
26. 191 N.J. at 436 (quoting William A. Dreier, et al., New Jersey Products Liability & Toxic Torts Law § 1:2-1 (2007)).
27. 191 N.J. at 436-37.
28. Id. at 437.
29. Id.
30. Id. at 436-37.
31. See N.J.S.A. 2A:58C-6.
32. 191 N.J. at 437.
33. Id. at 437-38.
34. Id.
35. Id. at 438-39.
36. Id. at 434.
37. Id. at 440 (citing Camden County Bd. of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 540 (3d Cir. 2001) (quoting Tioga Pub. Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993)).
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