author: Thomas R. Bender
The Supreme Court of Rhode Island held that the State of Rhode Island “cannot allege” facts sufficient to state a claim for common law public nuisance against lead pigment manufacturers. It based its decision on two basic factors: 1) although the manufacturers placed lead pigment into the stream of commerce, they did not control it at the time it harmed the children; and 2) that harm did not constitute an interference with a public right for purposes of a common law public nuisance.
The decision is particularly noteworthy for a number of points:
- the “control” requirement was related to the ability to prevent harm and the defendant’s conduct in failing to do so;
- "public right” was defined as an “indivisible resource” such as air, land or water, giving it a defined and limited scope;
- these limitations on common law public nuisance make public nuisance inapplicable to “stream of commerce” cases which must be governed by product liability law;
- product identification is an indispensable part of proving causation, whether the claim is called public nuisance or product liability; and
- the cause of action alleged by the State is a wholly new cause of action, dramatically expanding public nuisance concepts, that is inconsistent with the incremental growth of the common law and the role of the legislature to determine matters of broad public policy.
1. Basis of the Court’s Decision
2. Defining Public Nuisance Law in Rhode Island
3. Control as Relating to Conduct and Ability to Prevent Harm
4. “Public Right” as “Indivisible Resource”
5. Dramatic Expansion of the Public Nuisance Concepts of “Control” and “Public Right” Would Effectively Create a New Cause of Action
“[H]owever grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm."1
* * *
“[D]efendants’ conduct does not constitute a public nuisance as that term has for centuries been understood in Anglo-American Law[.]"2
On July 1, 2008 the Supreme Court of Rhode Island in State of Rhode Island v. Lead Industries Association, Inc., No.04-63-M.P., No.06-158-A., No. 07-121-A (July 1, 2008), vacated a jury verdict and judgment against NL Industries, Inc., the Sherwin-Williams Company, and Millennium Holdings, Inc., that was based on a finding they and/or their predecessors in interest manufactured, promoted and sold lead pigment, for use in residential paints, and were therefore legally responsible for causing the cumulative presence of lead pigment in paints and coatings throughout the State of Rhode Island – and that the cumulative presence of that product constituted a “public nuisance.”
In challenging the judgment on appeal, the defendants were permitted to file three separate “issues” briefs, joined by each defendant, raising a number of issues. NL filed a brief related to whether the common law of public nuisance could be applied to the manufacture and sale of a product; Millennium filed a brief related to whether a defendant could be held liable for the cumulative presence without any evidence identifying their product’s presence in the state, or even evidence suggesting how much was there if it was; and Sherwin-Williams filed a brief related to legislative deference and separation of powers issues in light of the legislature’s comprehensive statutory and regulatory lead policy already in place – as well as numerous First Amendment issues implicated by the State’s reliance on evidence of the defendants’ petitioning, associational, and speech activities.
In vacating the judgment and holding the defendants were entitled to judgment as a matter of law, however, the Supreme Court of Rhode Island focused on a single issue – the very first error claimed in NL’s public nuisance brief:
"Whether the trial court erred when it refused to dismiss the Amended Complaint and to grant judgment in favor of defendant on the ground that historic suppliers of lead pigments are not liable in public nuisance for claims of harm or risk of harm predicated on the existence of lead pigments in paints applied to Rhode Island buildings."3
Evaluating the complaint’s allegation that the defendants could be liable for the claimed public nuisance – the cumulative presence of lead pigment in residences throughout the state – based upon the manufacture, promotion and sale of lead pigment, the Court held the trial justice should have granted the defendants’ motions for judgment as a matter of law under Rule 12(b)(6),4 filed some eight years earlier at the inception of the case, concluding:
"[T]he public nuisance claim should have been dismissed at the outset because the state . . . cannot allege that defendants’ conduct interfered with a public right or that the defendants were in control of lead pigment at the time it caused harm to children in Rhode Island."5
After reviewing the history of the concept of public nuisance at common law,6 and as it developed in Rhode Island,7 the Court recognized “three principle elements” essential to establishing a cognizable public nuisance claim:
(1). an unreasonable interference;
(2). with a right common to the general public;
(3). by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred.8
The Court added that after establishing these three elements “one must then determine whether the defendant caused the public nuisance[,]”9 later emphasizing that “[c]ausation [both actual and proximate cause] is a basic requirement in any public nuisance action; such a requirement is consistent with the law of torts generally.”10 And although the Court did not characterize a “specific location” for the dangerous condition as a necessary element of a public nuisance claim, the Court thought it “advisable” to mention a specific identifiable location was “[a] common feature of public nuisance” and that “to date, the actions for nuisance in this jurisdiction have been related to land.”11
Notwithstanding the fact that the Court explained, in general terms, each of these elements and traditional features of a common law public nuisance claim – unreasonable interference, control, public right, causation, and specific location – the Court’s conclusion relied upon only two – control and public right.
According to the Court, to prove liability for public nuisance the “defendant must have control over the instrumentality causing the alleged nuisance at the time the damage occurs.”12 Characterizing this type of control as a “time-honored element of public nuisance,”13 the Court focused on the defendant’s ability to prevent the damage, and held: “They must have, minimally, controlled the nuisance at the time of the damage.”14 The element of control is related to the conduct that is relevant to public nuisance liability. Quoting the Supreme Court of New Jersey with approval, the Court agreed that “a public nuisance, by definition, is related to conduct, performed in a location within the actor’s control, which has an adverse effect on a common right.”15
Implicit in the Court’s analysis is that lead pigment in paint causes harm to children when the paint is in disrepair in residential dwellings, and that the ability to both prevent the condition causing the harm, and to abate the condition if it arises, rests with the property owner and not the lead pigment manufacturer, who has long since relinquished control of that component of the paint. Quoting several commentators, the Court recognized that “a product manufacturer who builds and sells the product and does not control the enterprise in which the product is used is not in the situation of one who creates a nuisance[,]”16 because “[f]urnishing a product or instrumentality – whether it be chemicals, asbestos, guns, lead paint, or other products – is not the same as having control over that instrumentality.”17 Implicitly, if not explicitly, the Court recognized that for public nuisance purposes, the harm caused by lead pigment in paint occurs when it is in the control of the property owner, who is then the one in the position to prevent the harm. And since “[t]he essence of public nuisance law * * * is ending the harmful conduct[,]” only the property owner presently “in control” of the lead pigment while it is causing harm can “abate” it.18 “This is impossible for the manufacturer or distributor who has relinquished possession by selling or otherwise distributing the product.”19 These points were determinative for the Court on the element of control:
[D]efendants were not in control of any lead pigment at the time lead caused harm to children in Rhode Island, making the defendants unable to abate the alleged nuisance, * * * [and] the General Assembly has recognized defendants’ lack of control and inability to abate the alleged nuisance[,] because it has placed the burden on landlords and property owners to make their properties lead safe.20
Put simply, the defendants’ lead did not cause the alleged harm while within their control as product manufacturers or promoters, and the state’s complaint failed 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.”21
The second of the traditional elements of public nuisance that the Court focused on was the nature of the “public right” that must be invaded to trigger public nuisance liability.
The Court restated the traditional standard that, for a nuisance to be a public one, it “must affect an interest common to the general public, rather than peculiar to one individual, or several.”22 The Court, however, focused on the limited nature of the “interest common to the general public” that must b interfered with to create a common law public nuisance, defining it as “public right,” that is, “an indivisible resource shared by the public at large, like air, water, or public rights of way.”23 The Court distinguished the “public right” element of public nuisance law from the broad, malleable, and public policy infused term “public interest”:
That which might benefit (or harm) “the public interest” is a far broader category than that which actually violates “a public right.” * * * While it is in the public interest to promote the health and well being of citizens generally, there is no common law public right to a certain standard of medical care or housing.24
And the Court agreed with a recent scholarly commentary that the manufacture and distribution of a product:
rarely, if ever, causes a violation of a public right as that term has been understood in the law of public nuisance. Products generally are purchased and used by individual consumers, and any harm they cause, . . . is not an actionable violation of a public right. * * * The sheer number of [individual] violations does not transform the harm from individual injury to communal injury.25
The Court noted that the State’s complaint alleged that “[d]efendants created an environmental hazard that continues and will continue to unreasonably interfere with the health, safety, peace, comfort or convenience of the residents of the [s]tate,”26 but that this fell short of alleging an interference with a public right, that is, “those indivisible resources shared by the public at large, such as air, water, or public rights of way.”27 Absent an interference with such an “indivisible resource,” a generalized interference with the “health, safety, peace, comfort or convenience” of a number of people does not by itself constitute interference with a public right that is the focus and concern of public nuisance law.28 While the cumulative presence of lead pigment in paints and coatings throughout the state may, and has, when poorly maintained, interfered with the “health, safety, peace, comfort or convenience” of a large number of individuals in discrete, divisible locations, that societal problem does not constitute interference with an indivisible public resource such as air, land or water, and does not constitute a condition the traditional common law of public nuisance was intended to address.
The Court recognized the essential nature of the state’s claim for what it was - placing an alleged unsafe product in the “stream of commerce”29 and that “the proper means of commencing a lawsuit against a manufacturer of lead pigments for the sale of an unsafe product is a products liability action.”30 And the Court recognized that public nuisance and products liability are two distinct causes of action “with rational boundaries that are not intended to overlap.”31
Public nuisance focuses on the abatement of annoying or bothersome activities. Product liability law, on the other hand, has its own well-defined structure, which is designed specifically to hold manufacturers liable for harmful products the manufacturers have caused to enter the stream of commerce.32
The Court acknowledged that “[a] product-based public nuisance action bears a close resemblance to a products liability action,”33 but that “the suit nevertheless sounds in products liability if it is against a manufacturer based on harm caused by its products[,]”34 and the principles developed for resolving products liability claims must apply to such actions – including the requirement that the product causing the harm be the product manufactured by the defendant – product identification.35 The Court believed it was “essential that these two causes of action remain just that – two separate and distinct causes of action.”36
* * *
The Court’s reluctance to expand the common law public nuisance notions of control and public right in the dramatic fashion envisioned by the state, and to blur (if not obliterate) the lines between public nuisance liability and product liability for product manufacturers, was based on its view of both the responsible judicial expansion of the common law and the properly restrained role of the judiciary in matters of broad social policy.
5. Dramatic Expansion of the Public Nuisance Concepts of “Control” and “Public Right” Would Effectively Create a New Cause of Action
The Court acknowledged that over centuries it had “taken careful steps to refine the common law definition of public nuisance to reflect societal changes.”37 But the Court took care to acknowledge that it was “cognizant of the fact that the common law is a knowable judicial corpus, and, as such serves the important social value of stability;”38 and “although the common law does evolve, that evolution takes place gradually and incrementally and usually in a direction that can be predicted.”39
By emphasizing the importance of the common law being knowable and predictable, the Court was very likely reflecting its concern that the imposition of potentially enormous, unanticipated, and effectively retroactive liability was inconsistent with notions of constitutional fundamental fairness and due process – themes that were a prominent part of the defendants’ briefing. The Court explained that although it recognized the need for incremental changes, “we are particularly loath to indulge in the abrupt abandonment of settled principles and distinctions that have been carefully developed over the years.”40 With respect to the concept of “public right” the Court believed:
The term public right is reserved more appropriately for those individual resources shared by the public at large, such as air, water, or public rights of way. * * * Expanding the definition of public right based on the allegations in the complaint would be antithetical to the common law and would lead to a widespread expansion of public nuisance law that never was intended . . . In declining to adopt such a widespread expansion of the law, we are mindful of the words of Edmund Burke that “bad laws are the worst sort of tyranny.” 1 Edmund Burke, The Works of Edmund Burke: With a Memoir, 318 (1860).
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The enormous leap that the state urges us to take is wholly inconsistent with the widely recognized principle that the evolution of the common law should occur gradually, predictably and incrementally. Were we to hold otherwise, we would change the meaning of public right to encompass all behavior that causes a widespread interference with the private rights of numerous individuals.41
The Court agreed with the New Jersey Supreme Court that expanding the concepts of control and public right in the manner urged by the state “would stretch the concept of public nuisance far beyond recognition and would create a new and extremely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.”42 The Court was guided by the view that “principals of judicial restraint . . . prevent [courts] from creating a cause of action for damages in all but the most extreme circumstances[,]”43 and that generally “the creation of new causes of action is a legislative function.”44
After all, the judiciary’s duty [is] to determine the law, not to make the law. * * * To do otherwise, even if based on sound public policy and the best of intentions, would be to substitute our will for that of a body democratically elected by citizens of this state and to overplay our proper role in the theatre of Rhode Island government.45
The Court noted that although the Rhode Island General Assembly had enacted comprehensive lead legislation, the Lead-Based Paint Poisoning Prevention Act in 1991 and the
Lead Hazard Mitigation Act in 2002, it “did not include an authorization of an action for public nuisance against manufacturers of lead pigments,”46 which would have legislatively modified the common law of public nuisance – at least with respect to the elements of control and public right. Instead, the statutory remedies it did provide were focused on the parties in control of the lead pigment at the time it caused harm – property owners – in accord with the existing law of public nuisance “in this state and all other jurisdictions.”47
In dismissing the State’s public nuisance complaint based on the manufacture and sale of a product, the Court embraced a traditional, historic and defined view of a common law public nuisance, and the distinct legal principles that have been developed for claims of injury against product manufacturers whose products are placed in the stream of commerce and are alleged to have caused injury to an individual, even large numbers of individuals.
It recognized the distinction between the limited range of indivisible resources that are a public right protected by the doctrine of public nuisance, and a collection of individual injuries addressed either on an individual basis by products liability law, or on a collective basis through the legislative and regulatory process.
And based on principles of judicial restraint and a respect for the policy making prerogative of the legislature, it refused to wholly transform the common law of public nuisance to address a public policy issue already comprehensively addressed by the legislature.
1. State of Rhode Island v. Lead Industries Association, Inc., et al. at 4.
2. Id. at 39.
3. NL Brief at ix.
4. State of Rhode Island v. Lead Industries Association, Inc., et al., at 17.
5. Id. (emphasis added).
6. Id. at 18-20. The Court relied heavily on two scholarly articles, Richard O. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941 (2007), and Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741 (2003).
7. Id. at 20-23.
8. Id. at 23.
9. Id. (emphasis added).
10. Id. at 30, 31-32.
11. Id. at 32.
12. Id. at 27.
13. Id. at 27.
14. Id. at 29.
15. Id. at 23 (quoting In re Lead Paint Litigation, 924 A.2d 484, 499 (N.J. 2007) (emphasis added).
16. Id. at 30 (quoting 2 American Law of Products Liability, §27:6 at 11 (3d 2006)).
17. Id. (quoting Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541, 568 (2006)).
18. Id. (quoting Gifford, 71 U. Cin. L. Rev. at 820).
19. Id. (quoting Gifford, 71 U. Cin. L. Rev. at 820).
20. Id. at 4.
21. Id. at 38.
22. Id. at 25 (emphasis added).
23. Id. at 26 (emphasis added).
24. Id. (quoting Gifford, supra, 71 U. Cin. L. Rev. at 815).
25. Id. (quoting Gifford at 817).
26. Id. at 34.
27. Id. at 35 (emphasis added).
29. Id. at 40.
34. Id. at 42.
35. Id. at 41.
36. Id. at 42.
37. Id. at 21.
40. Id. (internal citations omitted).
41. Id. at 35-36, 36-37 (emphasis added).
42. Id. at 38 (quoting In re Lead Paint Litigation, 924 A.2d at 494).
43. Id. at 5.
46. Id. at 42.