author: John Gray
Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors); and (3) to describe a legal liability that arises from the combination of the two.2 The law of nuisance law was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance).3
Over the last thousand years, public nuisance has been used by governmental authorities to stop conduct that was considered quasi-criminal because, although not strictly illegal, it was deemed unreasonable in view of its likelihood to injure someone in the general public.4 Traditionally, actionable conduct involved the blocking of a public roadway, the dumping of sewage into a public river or the blasting of a stereo in a public park.5 To stop this type of conduct, governments sought injunctions either enjoining the activity that caused the nuisance or requiring the responsible party to abate the nuisance.
In recent decades, however, governments blurred the lines between public and private nuisance causes of action. Dean Prosser noted this in 1966 and warned courts and scholars against confusing and merging the substantive laws of the two torts.6 In some states, his warning went unheeded and some courts and legislatures have created vague and ill-defined definitions to describe what constitutes a public nuisance. For example, Florida’s Supreme Court has held that a public nuisance is any thing that causes “annoyance to the community or harm to public health.”7 State legislatures, such as those in California and Iowa, have defined public nuisance as anything “injurious to health” or “indecent” or “unreasonably offensive to the senses” that interferes “with the comfortable enjoyment of life or property,” or “unlawfully obstructs the free passage or use.”8 Rhode Island’s Supreme Court held that public nuisance is “harm” that people are either suffering or threatened which they “ought not have to bear.”9 Thus in Rhode Island, liability in nuisance (as distinguished from negligence) arguably focuses on unreasonable injury rather than unreasonable conduct.
With such imprecise and ambiguous definitions, it is not surprising that courts have imposed liability n a wide variety of circumstances, ranging from environmental harms10 to activities deemed to violate public peace, comfort, and morals.11 As one commentator noted:
With such a broad concept in existence, backed with such broad remedies, what need have we of any other criminal offence?—or torts?—or remedies in administrative law? . . . Everything in public nuisance runs contrary to modern notions of certainty and precision in criminal law—and indeed, in civil law as well. How ever did we get an offence of such incredible breadth?12
It is for these reasons that the concept of public nuisance is so poorly understood, has been the subject of heated debate for more than a century. Legal scholars have described public nuisance as being “notoriously contingent and unsummarizable,” and have noted that “[g]enerations of legal writers [have] expressed their frustration with [it] in the most unhappy terms.”13 In 1875, Horace Wood, the author of the first American treatise on nuisance described the doctrine as a “wilderness of law.”14 William Prosser, the reporter for the Restatement (Second) of Torts, adopted Wood’s metaphor when he called nuisance law an “impenetrable jungle” and described it as a “legal garbage can” full of “vagueness, uncertainty and confusion.”15 More recently, one commentator described public nuisance as being “much-maligned,” but also noted that it “does not work on a moral or deductive principle.”16 According to U.S. Supreme Court Justice Blackmun, “‘one searches in vain . . . for anything resembling a principle in the common law of nuisance.”17 Because of the vagueness of public nuisance jurisprudence, some lawyers are seeking to redefine it scope and boundaries in new and unprecedented ways. For example, some lawyers are asking courts to allow them for use public nuisance against manufacturers in lieu of products liability laws.18 This module chronicles the development of public nuisance law.
The Creation and Development of Public Nuisance
1. English Common Law
2. Public Nuisance Law in the United States
3. The Environmental Law Movement’s Impact on Public Nuisance
4. Public Nuisance and Environmental Activism
5. Early Efforts to Use Public Nuisance Against Product Manufacturers
6. Present and Future Efforts to Use Public Nuisance Against Product Manufacturers
The Creation and Development of Public Nuisance
The tort of nuisance dates back to twelfth century English common law.19 It began as a criminal writ, belonging only to the Crown. It was used in cases that involved encroachments upon the King’s land or the blocking of public roads or waterways. The King sought to punish these criminal infringements, commonly known as “purprestures,” through criminal proceedings.20 Over time, activities prosecuted as public nuisances included everything from embezzling public funds to having a tiger pen next to a highway, from assisting a homicidal maniac to escape to placing a mutilated corpse on a doorstep, and from selling rotten meat to “subdividing houses to the point where they become ‘overpestered’ with the poor.”21 As these examples demonstrate, early authority to commence public nuisance actions was derived from the sovereign’s “police power.”22
By the fourteenth century, public nuisance principles were extended to include rights common to the public,23i such as roadway safety, air and water pollution, disorderly conduct and public health (e.g., to stop the spread of disease).24 During this period—long before any governmental regulations existed—nuisance provided a flexible judicial remedy to address conflict land use and social welfare. Flexibility was needed because in medieval times, and indeed long thereafter, the sovereign’s power was not divided into “branches” as we know it today. As a result, judges sitting with the power of the sovereign used the common law with the widest discretion to adapt their rulings to remedy wrongs as each individual case arose.25 In modern society, however, opportunities for "common law” discretion are substantially reduced by the presence of a vast array of statutes and regulations, all of which must be considered and balanced when a court deliberates a “common law" question. Hence, courts are no longer free to act independently to provide flexible judicial remedies26 without considering the entire tapestry of laws relevant to issues, especially when those laws originate in other branches of a government carefully entrusted with investigative resources and deliberative diversity that far exceed those of the judiciary.
Throughout medieval times, public nuisance remained only a crime—no private actions were allowed because the remedy was reserved for the King’s benefit.27 That changed in the sixteenth century when an English court allowed individuals to sue and recover damages under the doctrine. Scholars, treatises, articles, and even the Restatement (Second) of Torts uniformly cite an “anonymous” King’s Bench decision as the seminal case articulating this infamous rule28 that came from a judge’s dissenting opinion about a hypothetical person riding a horse.29 England’s early treatise writers used this judge’s dissent to create the rule that a private plaintiff (as compared to the Crown) may bring suit for public nuisance if he suffered a “particular” or “special” injury that was not common to the public.30 It allowed individuals to recover damages through public nuisance suits as long as their injuries were different in kind from the general public.31 To be “different in kind” required more than simply being more severe—it had to be different—and then individuals could only recover monetary damages.32 As a result, the law of nuisance co-mingled aspects of criminal law, real property law, and tort law.33
2. Public Nuisance Law in the United States
English common law was generally adopted without change in Colonial America. With respect to public nuisance, early American cases fell into one of two categories. Initially, they focused on obstruction of public highways or navigable waterways, but over time the tort was used to address other perceived invasions of public morals and welfare such as, running lotteries and other forms of gambling, keeping a disorderly house or tavern, enabling prostitution, and using profane language.34
As time passed, America shifted from an agrarian culture to an industrial society. This shift resulted in new land uses that conflicted with older customs. New inventions brought speed, machinery, emissions, smells, discharges, noise, and steam.35 When the Industrial Revolution began, there were few regulations limiting industrial operations, and, as a result, air and water pollution problems provided the first tests for American public nuisance law based either on (1) the long tradition of finding noxious trades to be public nuisances, or (2) the fact that “unpleasant” vapors usually arise from pollution.36
Regardless of the justification, the absence of environmental and industrial regulations resulted in public nuisance being used where the government “could not anticipate and explicitly prohibit or regulate through legislation all the particular activities that might injure or annoy the general public.”37 During this era, public nuisances were defined as violations of public rights, producing the same injury to all, having a common harm and producing common damage. Public nuisance was considered an indictable offense “at law” whose redress must be pursued by criminal prosecution on behalf of the public.38
During the 1930s, public nuisance cases dwindled as President Roosevelt’s New Deal policies became implemented.39 The need for public nuisance suit was supplanted by laws that subjected entire industries to “comprehensive statutory and regulatory schemes” that determined what were and what were not acceptable societal behaviors.40 Consequently, the first Restatement of Torts did not even include a reference to the tort of public nuisance when it was published in 1939.41 According to one commentator, the “troubled history of nuisance law should thus have been no more than a footnote in any casebook on landuse planning or environmental protection” because it was replaced by tools more suited to large-scale solutions such as zoning, and local, state, and federal regulations.42 These tools “enabl[ed] city planning, environmental protection, historical preservation, wilderness conservation, access for the disabled, density restrictions, and many other limitations, restrictions, adjustments, prohibitions, and restraints on land use.”43
Despite those observations, public nuisance was not permanently relegated to “footnote” status. Instead, it reappeared in mainstream American jurisprudence in the late 1960s during the drafting of the Restatement (Second) of Torts when Dean Prosser sought to limit its use to violations of criminal statutes.44 Environmental activists thought this was too restrictive, however, in light of emerging environmental jurisprudence and their belief that administrative agencies were not up to the task of regulating pollution.45 They wanted to use public nuisance law to combat pollution, including pollution that was state sanctioned through permits or allowed by local regulatory regimes or zoning regulations (i.e., no criminal violation).
Although the activists failed to remove the references to the quasi-criminal nature of public nuisance,46 they succeeded in sending the public nuisance sections back for further study and reconsideration in 1970.47 In May 1971, the American Law Institute adopted a “compromise” version of Restatement (Second) of Torts § 821B that defined public nuisance as an “unreasonable interference” with a public right.48 Nevertheless, the Restatement’s comments warned that if “a defendant’s conduct . . . does not come within one of the traditional categories of the common law crime of public nuisance or is not prohibited by a legislative act; the court is acting without an established and recognized standard.”49 While it gave individuals and organizations standing to enjoin or abate a public nuisance,50 it still required they prove that they were suffering an injury different in kind from the general public.51
Ultimately, the expanded language in Section 821B allowed courts, in a narrow way, to find the existence of a public nuisance in cases involving conduct that previously was not considered tortious. Section 821B includes and defines three factors to be used in guiding courts as to the meaning of “‘unreasonable,’” two of which—factors (a) and (c)—use very nebulous, open-ended language.52i It is these ambiguities and vagaries that being used by creative advocates and jurists. Instead of untangling the “jungle” grown by 900 years of confused jurisprudence, and despite the clear warnings contained in the Restatement’s comments, Section 821B has become a license for some judges and jurors to provide their own definitions of “unreasonable interference” and “a right common to the general public.”53
Early efforts to use public nuisance to combat pollution had mixed success. California courts denied class certification in 1971 in a case against a multitude of companies alleged to have contributed to air pollution in Los Angeles.54 The court found public nuisance ill-suited in cases involving manufacturers of whose emissions are governed by federal and state air pollution regulations.55 In contrast, in 1980, a federal court in New York used public nuisance in the famous “Love Canal” to impose liability even though the defendant never owned or controlled the land where the pollution occurred.56 Although the court acknowledged that imposing clean-up liability “is essentially a political question to be decided in the legislative arena,” it nonetheless allowed the public nuisance claims to proceed because someone had to be made responsible.57
The Love Canal case stands out as an exception to the traditional rule that public nuisance involves an activity tied to the land.58 Products are not tied to the manufacturer’s land, and they leave the manufacturer’s control when they are sold to third parties who consume them or attach them to property that the manufacturer neither owns nor controls. This is the rule that was followed in City of Bloomington v. Westinghouse Electric Corporation, where the Seventh Circuit Court of Appeals refused to hold a PCB manufacturer liable under public nuisance for the PCB-containing hazardous waste discarded by another company.59
Municipalities and school districts brought the first non-pollution-related public nuisance cases in the 1980s and 1990s against manufacturers of asbestos-containing products seeking to recover the costs of removing asbestos from their buildings. They argued that asbestos-containing products—by their very existence—constituted a public nuisance by interfering with the public’s right to health or safety even though the products were lawfully manufactured, distributed, and sold.60 Most courts rejected their argument finding that the creation of a product is not the same as the creation of a nuisance61 with some courts finding that “a nuisance claim may only be alleged against one who is in control of the nuisance creating instrumentality.”62
Undeterred by judicial rejection of public nuisance in asbestos cases, it found its way into the tobacco litigation of the 1990s. Even today, many people wrongly credit the use of public nuisance claims with turning the tide against the tobacco industry.63 However, most of those claims remained unresolved when the tobacco litigation ended with a massive settlement. The Plaintiffs added the public nuisance claims as a means to overcome defenses against product liability claims by claiming the defendants had harmed the states and had profited from that harm.64 Using public nuisance and other equitable theories of recovery, states argued that they were not required to prove specific causation in any individual case and that defenses based upon a smoker’s own conduct were not applicable to their case.65 But, because only one state adjudicated and rejected the use of public nuisance, its validity and vitality in lawsuits against product manufacturers were never established legally.66
As the tobacco litigation was winding down, government entities began using public nuisance as the vehicle to sue gun manufacturers, claiming that their policies and practices were responsible for creating a black market that permit criminals to acquire guns thereby interfering with the public health.67 Most, but not all, courts rejected the use of public nuisance against gun makers on the following grounds: (1) the sale of lawful products (e.g., handguns) does not inherently interfere “with a right common to the general public,” (2) the defendants lacked the requisite control over the source of the alleged public nuisance, (3) “product manufacturers and distributors simply cannot be held liable on a public nuisance theory,” (4) the government’s injuries are too indirect or remote from the gun makers’ conduct to allow recovery, and (5) that balancing the harm and utility of the sale and marketing of guns is a policy question better suited for the legislature than the courts, particularly because these activities are already well regulated.68 One court that allowed gun-related public nuisance suits to proceed acknowledged that it was acting without precedent but justified its decision on economic grounds stating that manufacturers can price the cost of litigation into their products.69 Today, public nuisance suits against gun manufacturers have been restricted, if not precluded, by the enactment of the Protection of Unlawful Commerce in Arms Act of 2005.70 This Act precludes tort actions against firearm manufacturers in federal or state courts based on criminals’ unlawful uses of their products. But for congressional intervention, it is highly likely that public nuisance litigation against gun manufacturers would still be ongoing.
Although lead pigment manufacturers became the target for negligence and products liability in the late 1980s, these efforts did not gain traction until recently. Like earlier asbestos suits, plaintiffs sought to place the responsibility for poorly-maintained lead paint on manufacturers. Lawsuits have been brought on behalf of individuals and classes of plaintiffs alleging personal injury due to exposure to lead paint. Governmental entities have also brought lawsuits seeking reimbursement for childhood lead exposure programs and/or funding for lead paint abatement. There have even been a few cases involving adult painters blaming their current health problems on long-ago exposure to lead paint.71 Most of these cases, however, are fact specific and involve individual issues. It was not until 1999, however, that a plaintiff sought to use public nuisance in lead paint litigation. In 1999, Rhode Island’s Attorney General brought a state-sponsored public nuisance lawsuit against the former lead companies.72 In his complaint, the Attorney General alleged that the mere presence of lead paint in homes and buildings constituted a public nuisance.73 He asked the court and jury to make the former manufacturers pay for removing lead paint from every building in Rhode Island. While the Rhode Island case was the first effort to use public nuisance in lead paint litigation, it was not the last. Since then, a number of governmental entities have brought public nuisance claims on behalf of states, counties, and municipalities.74
While lead litigation is the present fora, it appears that global warming represents the near-future arena for public nuisance litigation. Over the past few years, plaintiffs have been bringing public nuisance claims in global warming lawsuits against power companies,75 automobile manufacturers,76 and the oil and coal industries.77 The majority of these lawsuits are still working their way through the judicial system and it remains to be seen whether public nuisance claims will gain traction in climate change litigation.
1. This material found in this module can be found in the following article: Richard O. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941 (2008)
2. Restatement (Second) of Torts § 821A cmt. b (1979). Originally developed as a private tort tied to the land, a nuisance action was generally brought when a person interfered with another’s “use or enjoyment of land.” William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 997 (1966). However, the “interference” was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person’s land that affected the enjoyment of that land. Id.
3. Lauren E. Handler & Charles E. Erway III, Tort of Public Nuisance in Public Entity Litigation: Return to the Jungle?, 69 Def. Couns. J. 484, 484-85 (2002) (citing D.B. Dobbs, The Law of Torts §§ 463, 467 (2001); W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 87, 90 (5th ed. 1984)).
4. Prosser claimed that “a public . . . nuisance is always a crime” and that “[f]or a few centuries after its origin . . . public nuisance remained only a crime.” Prosser, supra note 2, at 997. But see Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 781 (2003) (disagreeing with Prosser by arguing that civil liability has always been an “incidental aspect of public nuisance”)
5. Restatement (Second) of Torts § 821A cmt. b (1979) (noting that in popular speech the term “public nuisance” loosely refers to “anything harmful, annoying, offensive, or inconvenient” and that this “careless usage” has occasionally and wrongfully crept into a court opinion).
6. Prosser, supra note 2, at 999 (noting that public and private nuisance “are quite unrelated except in the vague general way that each of them causes inconvenience to someone, and in common name”) (citations omitted).
10. Gifford, supra note 4, at 776 (identifying the discharge of untreated sewage, the maintenance of an automobile junkyard, the operation of a hog farm and sewage lagoon, and the storage of coal dust) (citations omitted).
11. Gifford, supra note 4, at 776 (identifying street gangs, a flea market with an unsightly appearance, loud music, and anti-abortion protests that blocked access to an abortion clinic) (citations omitted).
16. Id. (citing Richard A. Epstein, A Conceptual Approach to Zoning: What’s Wrong with Euclid, 5 N.Y.U. Envtl. L.J. 277, 282 (1996)).
18. See Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541 (2006); Gifford, supra note 4, at 745; see, e.g., Diamond v. Gen. Motors Corp., 97 Cal. Rptr. 639 (Cal. Ct. App. 1971) (filed during a time of increasing use of the public nuisance theory in environmental protection cases, this case broke new ground because it included manufacturers of products).
19. C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract 3-5 (1949) (dating the roots of nuisance back to ancient writs in twelfth century England).
20. Restatement (Second) Of Torts § 821B cmt. a (1979). The King, through a sheriff and later an attorney general, could bring suit to stop an infringement and force the offending party to repair any damage to the King’s property. See Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer, 54 Alb. L. Rev. 359, 361-62 (1990) (citing Spencer, supra note 12, at 56-59).
24. Schwartz & Goldberg, supra note 18 at 543-44 (citing Joseph W. Cleary, Municipalities Versus Gun Manufacturers: Why Public Nuisance Claims Just Do Not Work, 31 U. Balt. L. Rev. 273, 277 (2002)). Early public nuisance actions involved problems with roadway and streams (everything from encroachment to pollution to man-made flooding problems). Other public nuisances involved food (everything from wandering sick animals to selling unfit food or cheating on the amount or size sold to catching immature fish or hunting out of season). Finally, courts also considered the following to also be public nuisances: bawdy-houses and disorderly ale-houses, night-walkers, eavesdroppers, and common scolds. See Spencer, supra note 12, at 59-60; Restatement (Second) Of Torts § 821B cmt. b (noting that in each instance “the interference with the public right was so unreasonable that it was held to constitute a criminal offense”).
25. Judges had extraordinary power and flexibility until the signing of the Magna Carta set forth laws limiting the king’s (and thus the court’s) power. Magna Carta 1215, available at http://www.fordham.edu/halsall/source/mcarta.html (last visited Jan. 23, 2008).
26. See, e.g., In re Lead Paint Litig., 924 A.2d 484, 494 (N.J. 2007) (“It is only in light of [the state’s] statutory framework that the arguments of the parties concerning the viability of a cause of action sounding in public nuisance can be evaluated.”).
30. See, e.g., William L. Prosser, Handbook of the Law of Torts § 72, at 571 (1941). According to one commentator, Lord Edward Coke’s 1628 treatise, Commentary Upon Littleton, was the first to focus on the idea of a “‘particular’” and “‘special injury’” requirement by placing scholarly attention on his interpretation of this 1535 case. Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755, 794-95, n.171 (2001) (citing 1 Edward Coke, The First Part of the Institutes of the Law of England § 56a (1979 ed.) (1832)); see also Eric L. Kintner, Bad Apples and Smoking Barrels: Private Actions for Public Nuisance Against the Gun Industry, 90 Iowa L. Rev. 1163, 1190 (2005).
31. See Restatement (Second) Of Torts § 821B cmt. a (1979) (referencing Restatement (Second) Of Torts § 821C); see also Schwartz & Goldberg, supra note 18, at 544 (citing William A. McRae Jr., The Development of Nuisance in the Early Common Law, 1 U. Fla. L. Rev. 27, 36 n.14 (1948)) (noting that “[t]hough this view eventually prevailed, it was not accepted without dissent, the dissent being that a public offence should not give rise to a private right”).
36. Gifford, supra note 4, at 802 (citing Price v. Grantz, 11 A. 794 (Pa. 1888) (dust from manufacture of lead pipe and shot); People v. Gold Run Ditch & Mining Co., 4 P. 1152 (Cal. 1884) (dumping debris and waste into river); Chenowith v. Hicks, 5 Ind. 224 (1854) (slaughterhouse wastes dumped into waterway); Luning v. State, 2 Wis. 215 (1849) (erection of dam creating mill-pond with stagnant waters); Commonwealth v. Brown, 54 Mass 365 (1847) (unwholesome smokes and vapors from manufacture of Neat’s-foot oil; indictment held invalid); Smiths v. McConathy, 11 Mo. 517 (1848) (vapors from distillery and hog waste)).
37. Id. at 804. The exceptions to these early cases were the ones brought against railroads for noise and air pollution affecting the communities near the tracks. Court rejection of both public nuisance claims and private nuisance claims against a railroad was often premised upon the sanctioning of the railroad’s operations by legislative authority and the absence of negligence. “Where the operation of the railroad was pursuant to a legislative charter or license and the operation of the railroad was in accordance with the expectations of the legislature, courts generally held that the railroad constituted neither a public nuisance nor a private nuisance.” Id. at 802-04 (citing Lexington & Ohio R.R. v. Applegate, 38 Ky. (8 Dana) 289 (1839); Pres. & Dirs. of the Bordentown & S. Amboy Tpk. Rd. v. Camden & Amboy R.R. & Transp. Co., 17 N.J.L. 314 (N.J. 1839)).
38. See 1 H. G. Wood, A Practical Treatise on the Law of Nuisances in Their Various Forms; Including remedies Therefor at Law and in Equity § 14, at 34 (3d ed., 1893); see also Joseph A. Joyce & Howard C. Joyce, Treatise on the Law Governing Nuisances with Particular Reference to its Application to Modern Conditions and Covering the Entire Law Relating to Public and Private Nuisances § 14, at 22 (1906); 2 H. G. Wood, A Practical Treatise on the Law of Nuisances in Their Various Forms; Including remedies Therefor at Law and in Equity § 674, at 881 (3d ed., 1893).
39. According to Professor Gifford, from 1890 through 1929, there were more than 750 written opinions concerning public nuisance-related criminal prosecutions and more than 125 opinions in which public officials sought injunctive relief against a public nuisance. Likewise, he estimates that there were a little less than 100 opinions during the same time period in which individuals brought suit seeking damages for public nuisance. Gifford, supra note 4, at 805.
41. Id. at 806. Nuisance law was purportedly assigned to the Restatement of Property during the First Restatement because of its focus on property. These drafters focused only on private nuisance. When nuisance was eventually transferred to torts, public nuisance was not included. Thus, at least initially, nuisance was treated as though it were solely an issue of interference or an invasion of interests in the private use of land. See Schwartz & Goldberg, supra note 18, at 546 n.30 (citing Halper, , supra note 13, at 120-21).
46. Dean Prosser wrote in 1966 that “[a] public or ‘common’ nuisance is always a crime . . . a species of catch-all low-grade criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming-house or indecent exposure.” Prosser, supra note 2, at 997, 999. But see Gifford, supra note 4, at 781 (disagreeing with Prosser and suggesting that public nuisances were not always criminal actions); Halper, , supra note 13, at 118 (paraphrasing Judge Benjamin Cardozo as stating that “where a use is not in itself unlawful or hazardous, negligence is the appropriate liability standard for the injuries attributable to that use”).
48. Restatement (Second) Of Torts § 821B (1979) states that:
(1) A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.
50. Id. § 821C(2)(c) (giving individuals or groups standing if they are suing “as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action”).
54. Diamond v. Gen. Motors Corp., 97 Cal. Rptr. 639, 639 (Ct. App. 1971) (seeking an injunction against 293 named corporations and municipalities, as well as 1,000 unnamed defendants, for air pollution).
55. Id. at 642-46 (noting that the “plaintiff is simply asking the court to do what the elected representatives of the people have not done: adopt stricter standards over the discharge of air contaminants in this county, and enforce them with the contempt power of the court”).
56. See, e.g., United States v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960, 963-70 (W.D.N.Y. 1989). The court used a CERCLA-based “strict liability” analysis and applied it to the public nuisance claims, finding that Occidental was liable “for creation of the ‘public health nuisance.’” Id. at 967.
58. Cleary, supra note 24, at 280 (citing Tioga Pub. Sch. Dist. No. 15 of Williams County, N.D. v. U.S. Gypsum Co., 984 F.2d 915, 920 (8th Cir. 1993) (holding that the state’s nuisance statute did not apply to products liability cases).
59. 891 F.2d 611, 614 (7th Cir. 1989) (noting that the city had failed to cite any case that upheld a public nuisance claim in a products liability action); see also E.S. Robbins Corporation v. Eastman Chemical Company, 912 F. Supp. 1476, 1493-94 (N.D. Ala. 1995) (holding that the manufacturer of a chemical that had been spilled by others was not liable under the tort of public nuisance).
61. See City of San Diego v. U.S. Gypsum Co., 35 Cal. Rptr. 2d 876 (1994); Tioga Pub. Sch. Dist. No. 15 of Williams County, N.D. v. U.S. Gypsum Co., 984 F.2d 915, 920-21 (8th Cir. 1993); County of Johnson, Tenn. v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D.Tenn. 1984) (“[A]llowing . . . this action under a nuisance theory would convert almost every products liability action into a nuisance claim”); Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1992) (stating that “manufacturers, sellers, or installers of defective products may not be held liable on a nuisance theory for injuries caused by [a product] defect”).
62. Corp. of Mercer Univ. v. Nat’l Gypsum Co., No. 85-126-3-MAC, 1986 WL 12447, at *6 (M.D. Ga. Mar. 9, 1986) (noting that even if asbestos were considered a nuisance, “[t]he ‘nuisance’ creating property . . . was in possession and control of the plaintiff from the time it purchased the asbestos-containing products”); see also City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986); Hooksett Sch. Dist., 617 F. Supp. at 133.
63. This misconception is based on the fact that, before the mid-1990s, tobacco lawsuits were wholly unsuccessful because, under product liability law, courts found that the harmful effects of smoking were unforeseeable “at the time that plaintiffs began smoking and that “‘the manufacturer is not the insurer against the unknowable.’” See Gifford, supra note 25, at 754-57 (quoting Lartique v. R.J. Reynolds Tobacco Co., 317 F.2d 19, 40 (5th Cir. 1963)). The real turning point followed two dramatic events: the disclosure that tobacco companies concealed documents showing their knowledge of the addictive nature of smoking, and the nationwide coordinated effort of state-sponsored lawsuits. Id. at 757-58.
67. See, e.g., City of Gary, Ind. ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1231 (Ind. 2003) (alleging that the gun makers, distributors, and dealers created the public nuisance by knowingly participating in a distribution system that provided guns to criminals and juveniles); City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1141 (Ohio 2002) (alleging that the defendants knew or should have known that their conduct would “cause handguns to be used and possessed illegally” such that a public nuisance was created); Ganim v. Smith & Wesson Corp., 780 A.2d 98, 115 (Conn. 2001) (alleging that the existence of the nuisance [the presence of illegal guns] increases the cost of running the city).
69. City of Gary, Ind., ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1231, 1234 (Ind. 2003) (acknowledging that under Indiana law, courts have recognized public nuisance claims only when the claims involve land use or illegal activities).
70. Pub. L. No. 109-92, 119 Stat. 2095 (2005) (to be codified at 15 U.S.C. §§ 7901-7903, 18 U.S.C. §§ 922, 924) (“To prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.”).
71. See, e.g., Jefferson v. Lead Indus. Ass’n, 106 F.3d 1245 (5th Cir. 1997) (brought by parents of child); City of Phila. v. Lead Indus. Ass’n, 994 F.2d 112 (3d Cir. 1993) (brought by city and housing authority); Santiago v. Sherwin-Williams Co., 782 F. Supp. 186, 193 (D. Mass. 1992) (brought by injured plaintiff); Cofield v. Lead Indus. Ass’n, No. MJG-99-3277, 2000 WL 34292681 (D. Md. Aug. 17, 2000) (brought by home owners); Brenner v. Am. Cyanamid Co., 699 N.Y.S.2d 848 (App. Div. 1999) (brought by parents of child); Skipworth v. Lead Indus. Ass’n, 690 A.2d 169 (Pa. 1997) (brought by parents of child); Court’s Decision, supra note 114, at *17-18 (brought by State Attorney General); see also Scott A. Smith, Turning Lead into Asbestos and Tobacco: Litigation Alchemy Gone Wrong, 71 Def. Couns. J. 119, 120 (2004) (discussing history of cases brought against lead manufacturers, including those of adult workers).
72. Retainer Agreement, App. 4 to Pet. For Cert. ¶ 1, Rhode Island v. Lead Indus. Ass’n, No. 99-5226 (R.I. Super. Ct. filed Mar. 2, 2004). See also Smith, supra note 215, at 119 (stating that “lead paint and pigment defendants had never lost or settled a case” since 1987); Editorial, Rhode Island Rhapsody, Wall St. J., Aug. 16, 2006, at A10 (discussing Rhode Island’s use of a new model for state-sponsored litigation that combines the prosecutorial power of the government with private lawyers aggressively pursuing litigation that has the potential to generate hundreds of millions—or billions—of dollars in contingent fees).
73. See, e.g., Rhode Island v. Lead Indus. Ass’n, No. 99-5226, 2001 R.I. Super. LEXIS 37 (Apr. 2, 2001). It is widely accepted that when the paint is allowed to crack or peel, young children that ingest the lead paint chips can contract lead poisoning. Lead poisoning can impair cognitive function, stunt growth, and lead to behavioral problems. See, e.g., In re Lead Paint, No. MID-L-2754-01, 2002 WL 31474528, at *2 (N.J. Super. Ct. Law Div. Nov. 4, 2002).
75. Kiviliana v. ExxonMobil Corp., Civ. No. ______ (N.D. Cal. filed Feb. 28, 2008) (seeking monetary damages), available at http://www.adn.com/static/adn/pdfs/Kivalina%20Complaint%20-%20Final.pdf (last visited Mar. 8, 2008); Connecticut v. American Electric Power Co., Civ. No. 04 CV 05669 (S.D.N.Y. filed July 21, 2004) (seeking to have climate change declared to be a “public nuisance” and to have the defendants enjoined to abate their contribution to the nuisance by first capping carbon dioxide emissions and then reducing them). See also Robert Meltz, Climate Change Litigation: A Growing Phenomenon, (Cong. Research Serv., Report for Congress, Order Code RL32764, May 18, 2007), at CRS-11, available at http://www.ncseonline.org/NLE/CRSreports/07Jun/RL32764.pdf (last visited Sept. 8, 2007). See also
76. California ex rel. Bill Lockyer, Attorney General v. General Motors Corp., No. 06-05755 (N.D. Cal. filed Sept. 30, 2006) (seeking compensation for the state’s expenses for planning, monitoring, and infrastructure changes associated with climate change and to holding the automakers liable for all future damages caused by greenhouse gases emitted from their products). See Meltz, supra note 75 at CRS-11.
77. Comer v. Nationwide Mutual Insurance, No. 1:05CV436-LG_RHW (S.D. Miss., filed Sept. 30, 2005) (seeking monetary damages); see also American Bar Assoc., Global Climate Change and U.S. Law 201 (Michael B. Gerrard eds., 2007).