Modules
About Usauthors: Michael T. Nilan and Peter D. Gray
Syllabus
The past two decades have witnessed conscious and coordinated efforts by plaintiffs’ lawyers to convert the tort of public nuisance into a vehicle for targeting manufacturers of a variety of products, including handguns, asbestos, tobacco, lead pigment, and lead paint. In this context, the purported appeal of public nuisance arises from the historically vague and ill-defined nature of the tort. Proponents of product-based public nuisance litigation hope to capitalize on public nuisance’s lack of clarity and absence of definite standards as a means of evading many of the widely accepted and well-defined limitations and defenses of traditional product liability law.
Notwithstanding these efforts, public nuisance has a poor track record as a successful cause of action against product manufacturers and sellers. This is largely attributable to fundamental distinctions between public nuisance and traditional product liability theories of recovery. These distinctions reflect the fact that, at bottom, the two legal theories are not directed toward the same end:
Public nuisance focuses on the abatement of annoying or bothersome activities. Products liability law, on the other hand, has its own well-defined structure, which is designed specifically to hold manufacturers liable for harmful products that the manufacturers have caused to enter the stream of commerce.1
Analyzing the distinctions between public nuisance and product liability illuminates why the great majority of courts have rejected public nuisance claims that are premised upon the manufacture or sale of products.
This module compares the law of public nuisance with traditional product liability law to identify and examine these areas of contrast, and to demonstrate how these differences have led courts to reject public nuisance as a viable cause of action against product manufacturers and sellers.
Index
- The Boundary between Public Nuisance and Product Liability
- Product Liability: The Requirement of a Defect
- Product Liability: The Requirement of Culpability/Fault
- Public Nuisance: The Requirement of Interference with a Right Common to the Public
- Public Nuisance: The Right of Control
- Causation in Public Nuisance and Product Liability
- Conclusion
Text
1. The Boundary between Public Nuisance and Product Liability
The parameters of product liability law are well-established. They have been fleshed out over many decades through a body of legislative enactments and voluminous case law. Whether grounded in tort law or warranty, product liability claims have clearly delineated not only the elements that a plaintiff must establish, but, in addition, well-articulated defenses to liability.
Public nuisance law cannot lay any claim to such clarity; rather, public nuisance is notorious for its lack of clarity and established guideposts. Dean Prosser famously described the law of public nuisance as an “impenetrable jungle” wherein the word “nuisance” means “all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.”2 Prosser further lamented that public nuisance is “incapable of any exact or comprehensive definition.”3
Given this vagueness and uncertainty, it is not surprising that social activists and imaginative trial lawyers have looked to public nuisance as a potential vehicle for seeking redress of a host of perceived social ills while sidestepping many of the burdens that traditional product liability law places upon a claimant.4 By and large, however, courts have been unwilling to embrace product-based public nuisance litigation; voicing reluctance to allow breaches in “the boundary between the well-developed body of product liability law and public nuisance law.”5 For example, in language that has been frequently quoted by courts in subsequent product-based public nuisance cases, the United States Eighth Circuit Court of Appeals rejected a purported public nuisance law claim against an asbestos manufacturer:
Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action … regardless of the defendant's degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.6
Voicing similar concerns, a New York appellate court rejected a public nuisance claim brought against firearms manufacturers, stating that allowing the claim to proceed would “likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.”7 As the court continued, “[a]ll a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets, and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born.”8
Accordingly, the majority of courts that have considered the question have expressed a determination to preserve the “boundary” between public nuisance and product liability. “It is essential that these two causes of action remain just that -- two separate and distinct causes of action.”9
2. Product Liability: The Requirement of a Defect
The bases for liability in a traditional product liability claim can generally be divided into the following categories, “the mis-manufacturing of a product, the defective design of a product, or the failure by a manufacturer to reasonably warn the public of a risk associated with a product.”10
Each of these traditional liability theories is premised upon the existence of a defective product -- “defect is the conceptual lynchpin that holds products liability law together[.]”11 This is a feature that the proponents of product-based public nuisance lawsuits recognize; for example, one of the architects of public nuisance litigation against the firearms industry lamented the fact that under traditional product liability law, “to state a claim the product must be ‘defective,’ and courts have noticed that handguns work all too well.”12
Further, in a traditional product liability claim, the issue of whether a product is “defective” often hinges upon application of defenses that, if proven, conclusively establish that the product was not defective. For example, in a traditional product liability action, the manufacturer can raise the defense that, at the time of its sale, the product at issue was “state of the art” and could not have been improved upon or made safer given the then-existing state of scientific knowledge. This precludes juries from finding manufacturers liable based upon hindsight and scientific and technological advances occurring many years after the product was manufactured and sold.13
Public nuisance law, by contrast, is not premised upon the existence of a defective product.14 Nor does it necessarily implicate a defective instrumentality that created the nuisance. As a philosophical proposition, this is perfectly logical as it applies to current activities or behavior. A viable common law public nuisance claim requires the existence of a condition that unreasonably interferes with a right common to the general public.15 An otherwise lawful activity -- e.g., the operation of a hog farm or the storage of coal dust -- can nonetheless unreasonably interfere with a right common to the general public and be actionable as a public nuisance.16 A traditional public nuisance action would seek to abate such a nuisance condition by eliminating or ameliorating the harmful conduct.17 Abatement, however, might not necessitate shutting down the enterprise altogether. If operating the hog farm or storing the coal dust can be accomplished such that there no longer is an unreasonable interference with a public right, then the nuisance has been successfully abated and the defendant can continue raising hogs or storing coal dust.
But this logic breaks down when public nuisance litigation is targeted at product manufacturers and sellers. In this context, the proponents of products-based public nuisance litigation seek to impose public nuisance liability upon manufacturers and sellers of products that were not only legally sold but which often worked exactly as designed and intended -- i.e., which are not defective. This is demonstrated by the public nuisance litigation against firearms manufacturers and sellers. In such cases, the theory is not that the product is defective but that it is, in fact, lethally effective, with a public nuisance condition resulting from the product’s lawful manufacture and distribution. This is a proposition that many courts have refused to accept. As one court put it when affirming dismissal of a gun public nuisance case, “[i]f defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity.”18
Further, the lack of a product defect has proven an obstacle to success in public nuisance litigation against the manufacturers of lead pigment used in lead-based paints. The plaintiffs in these cases do not contend that the lead pigment or lead-based paint was defective when it was manufactured and sold. Rather, they maintain that the manufacture and sale of lead pigment created a public nuisance because, decades after the lead pigment was sold and incorporated into lead-based paint, the paint deteriorated and caused children to suffer exposure to dangerous levels of environmental lead dust.19
But, as with “non-defect” firearms public nuisance cases, courts have been unreceptive to the “deterioration over time” lead pigment public nuisance theory. When rejecting such a claim, the New Jersey Supreme Court stated, “the 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.”20
3.Product Liability: The Requirement of Culpability/Fault
A successful traditional product liability claim usually requires at least some showing of culpability or fault on the defendant’s part, such as a demonstration of negligence or intentionally tortious conduct.21 Even a strict liability claim contains an implicit culpability/fault requirement as strict liability will only lie where a product contains a defect that renders it unreasonably dangerous.22
By contrast, whether a successful public nuisance claim requires a showing of fault or culpability on the defendant’s part is an unsettled question. Dean Prosser clearly believed that it did. In his view, a defendant could be found liable for public nuisance only for conduct that was either a violation of a criminal statute or that “rest[s] upon any of the three familiar tort bases: intent, negligence, or strict liability.”23 Furthermore, Comment "e" to the Restatement (Second) of Torts Section 821B states:[T]he defendant is held liable for a public nuisance if his interference with the public right was intentional or was unintentional and otherwise actionable under the principles controlling liability for negligent or reckless conduct or for abnormally dangerous activities. In each of these categories, some aspect of the concept of unreasonableness is to be found. If the interference with the public right is intentional, it must also be unreasonable. … If the interference was unintentional, the principles governing negligent or reckless conduct, or abnormally dangerous activities all embody in some degree the concept of unreasonableness.Hence, in a public nuisance action brought against a manufacturer of lead pigment, a Wisconsin trial court instructed the jury that in order to find the manufacturer liable, the jury had to find that the manufacturer “acted intentionally and unreasonably, and that its intentional and unreasonable conduct was a cause of the public nuisance.”24
But not all courts accept this view. In a 1982 opinion, the Rhode Island Supreme Court held that the plaintiffs could recover for public nuisance even though the defendant’s activities were not otherwise tortious and did not violate a specific state statute.25 In the court’s view, a public nuisance “is predicated upon unreasonable injury” and not “unreasonable conduct.”26 Relying upon this language, the trial court in the Rhode Island lead pigment public nuisance action instructed the jury as follows:
The act or failure to act by a Defendant need not be intentional or negligent to impose liability for creating a public nuisance. Rather, the fact that the conduct which caused the public nuisance otherwise is lawful or has not been made unlawful does not preclude liability where the conduct nevertheless results in the public nuisance.27
For other courts, however, the apparent absence of any culpability requirement in public nuisance actions was reason enough to reject the claim’s application to the manufacture and sale of products. For example, when rejecting an asbestos public nuisance claim, the U.S. Eighth Circuit Court of Appeals stated that under the plaintiff’s nuisance theory, “any injury suffered in North Dakota would give rise to a cause of action … regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery.”28
4. Public Nuisance: The Requirement of Interference with a Right Common to the Public
The law of public nuisance is not directed towards protecting individual rights or remedying individual injuries. Instead, public nuisance is intended to protect collective rights, and is specifically directed at those instances where there has been “an unreasonable interference with a right common to the general public.”29 A “right common to the general public” does not automatically correspond to a right held by a large number of people; rather, “it is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.”30 Hence:
[T]he pollution of a stream that merely deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with their land does not for that reason alone become a public nuisance. If, however, the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance.31
Viable traditional product liability claims, by contrast, are premised upon the alleged tortious infliction of personal, individual injuries -- not injuries to a right common to the public. This is true even of class-action product liability actions,32 and other mass tort product liability cases, such as federal court multi-district litigation product liability actions.33 While the number of plaintiffs in such a mass tort case might be very large indeed, the case itself is still an aggregation of many asserted claims of tortiously inflicted individual injury.
This dichotomy between public nuisance’s “right common to the general public” and the traditional product liability personal injury claim has proven fatal to certain high-profile, product-based public nuisance claims. In a public nuisance firearms case, the Illinois Supreme Court expressed skepticism regarding the alleged public right at issue -- “the right to be free from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats of danger to person and property, caused by the presence of illegal weapons in the city of Chicago, allegedly made possible by defendants’ action or inaction elsewhere.”34 The Illinois Supreme Court questioned whether this purported public right “is merely an assertion, on behalf of the entire community, of the individual right not to be assaulted.”35 The Court further described itself as being, “reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in a manner that may create a risk of harm to another.”36
Ultimately, the Illinois Supreme Court rejected the firearms public nuisance claim on other grounds, and did not resolve the question of whether the plaintiffs’ complaint alleged an interference with a public right.
The Rhode Island Supreme Court, however, relied extensively upon the Illinois Supreme Court’s discussion when concluding that the State of Rhode Island failed to allege an unreasonable interference with a public right in the State’s public nuisance action against lead pigment manufacturers.37 Therein, 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, thereby constituting a public nuisance.”38 The Rhode Island Court concluded that, “[e]xpanding 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 ….”39 The New Jersey Supreme Court reached essentially the same conclusion when rejecting a virtually identical lead pigment public nuisance action: “[W]ere 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.”40
5.Public Nuisance: The Requirement of Control
Historically, public nuisance claims almost always involved a defendant’s use (or misuse) of its real property.41 Thus, “when one reads hundreds of nuisance cases from medieval times to the present, one is struck by the reality that public nuisance almost always involves land, not injuries that occur in a variety of other factual contexts such as collisions between vehicles, business or professional settings, or other personal injuries.”42
A related historic feature of public nuisance is its emphasis upon the remedy of abatement. “History demonstrates that the core purpose underlying public nuisance has been to assure that public authorities have a legal remedy available to terminate conduct of a defendant that is violating a public right and injuring the public safety, health or welfare.”43 Public nuisance’s focus upon abatement continues to this day.44
The abatement remedy works when public nuisance law is confined to its traditional arena of combating nuisance conditions that arise from a defendant’s use of real property. To successfully abate a public nuisance, a defendant must have control over the instrumentality giving rise to the nuisance condition, “either through ownership or otherwise.”45 A defendant who owns the real property from which the nuisance condition arises -- or who at least has some possessory interest short of actual ownership -- exercises the requisite “control” to take the measures necessary to successfully abate the nuisance.46
A manufacturer or seller of a product, by contrast, does not exercise ongoing control of the product. Instead, the product manufacturer relinquishes control of the product upon the product’s entry into the stream of commerce, and the product seller loses control of the product upon its sale. As a consequence, while “[t]he essence of public nuisance law … is ending the harmful conduct” through abatement, “[t]his is impossible for the manufacturer or distributor who has relinquished possession by selling or otherwise distributing the product.”47
Accordingly, this inability to exercise control over and abate the purported nuisance-creating instrumentality -- i.e., the product after it enters the stream of commerce -- has led a number of courts to reject public nuisance as a viable cause of action against product manufacturers and sellers.48
6.Causation in Public Nuisance and Product Liability
A plaintiff in a traditional product liability action must prove that the defendant’s defective product proximately caused her alleged injuries.49 Proximate causation is also a requirement for success in a public nuisance action.50 The proximate cause inquiry is often divided into two subcomponents, causation-in-fact and legal cause;51 however, some courts equate “proximate cause” with “legal cause” while treating causation-in-fact as a threshold condition that the plaintiff must establish before the issue of “proximate” or “legal” causation is reached.52
Causation has created two particular obstacles to success in product-based public nuisance litigation. The first of these obstacles is raised by causation-in-fact. Causation-in-fact requires the plaintiff to establish “a reasonable certainty that a defendant’s acts caused the injury or damage.”53 When the injury is alleged to have been caused by a product, causation-in-fact requires the plaintiff to show that his injuries were caused by the defendant’s product and not just a similar product to the one manufactured or sold by the defendant. This requirement is known as “product identification”.54
The “product identification” showing has been particularly troublesome for plaintiffs in lead pigment public nuisance cases. Lead pigment has not been widely used in paint since the 1940s, and has been banned altogether for use in residential paints since 1978.55 As a consequence, historical evidence that might identify the specific manufacturer of the lead pigment used in paint found in a particular location -- e.g., sales receipts, invoices, the paint cans -- has been lost and the witnesses who could possibly identify the specific lead pigment (such as the painters who applied the paint) have either died or have no recollection of paint products they used more than half a century ago.56 Moreover, unlike other substances, there is no scientifically accepted method for ascertaining the manufacturer of the specific lead pigment used in lead-based paint.57 As a consequence, courts have dismissed a number of lead pigment public nuisance cases for lack of proof of product identification and causation-in-fact.58
Establishing “legal cause” has also proved problematic for plaintiffs in product-based public nuisance litigation. Here, the difficulty can be characterized as “remoteness”, “lack of forseeability” or “attenuation”. Put simply, the typical product based public nuisance litigation seeks to attach liability to defendants who are far removed in time, place and action from the actual harm at issue. For example, the United States Third Circuit Court of Appeals addressed a firearms public nuisance action that was predicated upon the following chain of events: (1) the manufacturers produce firearms at their places of business; (2) they sell the firearms to federally licensed distributors; (3) those distributors sell them to federally licensed dealers; (4) some of the firearms are later diverted by unnamed third parties into an illegal gun market, which spills into the plaintiff County; (5) the diverted firearms are obtained by unnamed third parties who are not entitled to own or possess them; (6) these firearms are then used in criminal acts that kill and wound County residents; and (7) this harm causes the County to expend resources to prevent or respond to those crimes.59 The court rejected this causal chain as being “simply too attenuated”.60 Causal remoteness and hence, lack of legal causation, has also factored into the dismissal of at least one lead pigment public nuisance case.61
7.Conclusion
Notwithstanding the vigorous efforts of the plaintiffs’ bar, the majority of courts have held to the view that “public nuisance and products liability are two distinct causes of action, each with rational boundaries that are not intended to overlap.”62
Unlike a traditional product liability claim, a viable public nuisance claim does not require a defective instrumentality and (at least in some jurisdictions) does not require a demonstration of the defendant’s culpability or fault. An actionable claim for public nuisance does require an unreasonable interference with a right common to the public; a requirement that does not fit within the product liability framework since product liability law exists to hold manufacturers liable for individual injuries caused by defective products, and not to redress collective wrongs. Further, to successfully abate a public nuisance condition, the defendant must be able to exercise control over the nuisance instrumentality. Product manufacturers and sellers, however, relinquish control over their products after the products enter the stream of commerce and are sold. Lastly, while there is overlap in the causation elements of the two causes of action, lack of evidence of causation-in-fact and issues of causal remoteness frequently derail product-based public nuisance claims.
In summary, the attempt to shoehorn product liability claims into public nuisance has largely failed as courts have generally declined the invitation to breach the traditional boundary between product liability and public nuisance law.
Resources:
1. State v. Lead Industries, Ass’n, Inc., 951 A.2d 428, 456 (R.I. 2008).
2. W. Page Keeton et al., Handbook of the Law of Torts, ch. 15, § 86 at 616 (5th ed. 1984).
3. Id. Sounding a similar note is Justice Harry Blackmun’s complaint that, “one searches in vain … for anything resembling a principle in the common law of nuisance.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1055 (1992) (Blackmun, J., dissenting). See also Louise A. Halper, Untangling the Nuisance Knot, 26 B.C. Envtl. Aff. L. Rev. 89, 96 (1998) (“The law of nuisance is, however, at least contested, and perhaps confused beyond repair.”)
4. One proponent of product-based public nuisance litigation described the perceived advantages of public nuisance law as follows:
[P]ublic nuisance gives plaintiffs the opportunity to obtain damages and injunctive relief, lacks laches and other common tort defenses, is immune to administrative law defenses such as exhaustion, avoids the private nuisance requirement that the plaintiff be a landowner/occupier of affected land, eliminates a fault requirement, and circumvents any pre-suit notice requirement.
Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755, 774-75 (2001). See also Lead Industries, 951 A.2d at 456 (“A product-based public nuisance cause of action bears a close resemblance to a products liability action, yet it is not limited by the strict requirements that surround a products liability action.”)
5. Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536, 540 (3d Cir. 2001).
6.Tioga Public Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993) (emphasis added). Subsequent opinions having quoted the highlighted language include Lead Industries, 951 A.2d at 453-55; In re Lead Paint Litig., 924 A.2d 484, 505 (N.J. 2007); City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 n.6 (3d Cir. 2002); and Camden County, 273 F.3d at 540.
7. People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91, 761 N.Y.S.2d 192, 196 (App. Div. 2003).
8. Id. See also City of Modesto Redevelopment Agency v. Superior Court, 13 Cal.Rptr.3d 865, 873 (Cal. Ct. App. 1 Dist. 2004) (“We agree … that the law of nuisance is not intended to serve as a surrogate for ordinary products liability.”); Johnson County, Tenn. v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984) (“[A]llowing the plaintiff to bring this action under a nuisance theory would convert almost every products liability action into a nuisance claim.”)
9. Lead Industries, 951 A.2d at 457.
10. Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541, 578 (2006).
11. James A. Henderson Jr. & Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. Rev. 1263, 1267 (1991).
12. David Kairys, Legal Claims of Cities Against the Manufacturers of Handguns, 71 Temp. L. Rev. 1, 15 (1998). Cf., Godoy ex rel. Gramling v. E.I. du Pont de Nemours and Co., 768 N.W.2d 674, 2009 WI 78 at ¶¶ 30-37 (Wis. 2009) (lead pigment manufacturers could not be sued under design defect theories because lead is a “characteristic ingredient” of lead pigment; hence, it is impossible to “design” lead pigment that does not contain lead).
13. See, e.g., McGuire v. Davidson Mfg. Corp., 398 F.3d 1005, 1010 (8th Cir. 2005) (discussing state of the art defense); Cavanaugh v. Skil Corp., 751 A.2d 518, 519-20 (N.J. 2000) (same).
14. See Schwartz & Goldberg, supra note 10, at 579 (stating that “public nuisance does not include the concept of ‘defect’ at all.”) See also County of Santa Clara v. Atlantic Richfield Co., 40 Cal.Rptr.3d 313, 328 (Cal. Ct. App., 6th Dist. 2006). (“A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition.”)
15. See Restatement (Second) of Torts § 821B(1) (1979).
16. See Donald G. Gifford, Public Nuisance as a Mass Product Liability Tort, 71 U. Cin. L. Rev. 741, 776 (2003).
17. See Gifford, supra note 16 at 820. (“The essence of public nuisance law … is ending the harmful conduct.”).
18. Camden County, 273 F.3d at 540. See also Spitzer, 761 N.Y.S.2d at 197.
19. See Richard O. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941, 984-85 (2008).
20. In re Lead Paint Litig., 924 A.2d at 502. See also City of Chicago v. Amer. Cyanamid Co., 823 N.E.2d 126, 129 (Ill. Ct. App., 1st Dist. 2005) (“We therefore hold that the conduct of defendants in promoting and lawfully selling lead-containing pigments decades ago, which was subsequently lawfully used by others, cannot be a legal cause of plaintiff's complained-of injury, where the hazard only exists because Chicago landowners continue to violate laws that require them to remove deteriorated paint.”) (Emphasis in original).
21. See, e.g., Colville v. Pharmacia & Upjohn Company LLC, 565 F. Supp.2d 1314, 1320 (N.D. Fla. 2008) (discussing elements of common law product liability negligence claim); Gerber v. Hoffmann-La Roche Inc., 392 F. Supp.2d 907, 923 (S.D. Tex. 2005) (same); In re TMJ Implants Products Liab. Litig., 113 F.3d 1484, 1497 (8th Cir. 1997) (discussing elements of fraudulent concealment and fraudulent misrepresentation claims in product liability context).
22. See, e.g., Restatement (Second) of Torts § 402A (1979); Colville, 565 F. Supp.2d at 1320; Gerber, 392 F. Supp.2d at 913. In this regard, “strict liability” must be distinguished from “absolute liability”. The latter is precisely as labeled: absolute liability without any requirement of culpability or unreasonable conduct on the defendant’s part. Its application, however, is confined to a narrow class of ultra hazardous activities, such as the manufacture of explosives. See Restatement (Second) of Torts §§ 519-520.
23. See Gifford, supra note 16, at 806 (quoting William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 999 (1966)).
24. See City of Milwaukee v. NL Industries, 315 Wis.2d 443, 762 N.W.2d 757, 2008 WI App 181 at ¶ 32 (Wis. Ct. App. 2008), rev. denied 765 N.W.2d 579 (Table), 2009 WI 34 (Wis., Apr., 14, 2009). The jury returned a verdict for the pigment manufacturer. On appeal from the City’s post-trial motions, the Wisconsin Court of Appeals affirmed, id., ¶ 2, and the Wisconsin Supreme Court denied the plaintiff’s petition for review of the court of appeals’ decision.
25. Wood v. Picillo, 443 A.2d 1244, 1247 (R.I. 1982).
26. Id. See also United States v. Hooker Chemicals & Plastics Corp., 722 F. Supp. 960, 968 (W.D.N.Y. 1989) (“New York public nuisance law is clear that, in an action brought by the State in the exercise of its police powers for either abatement or restitution, ‘fault is not an issue, the inquiry being limited to whether the condition created, not the conduct creating it, is causing damage to the public.’” (quoting State v. Schenectady Chemicals, Inc., 117 Misc.2d 960, 970, 459 N.Y.S.2d 971, 979 (Sup. 1983)).
27. Quoted in Aileen Sprague & Fidelma Fitzpatrick, Getting the Lead Out: How Public Nuisance Law Protects Rhode Island’s Children, 11 Roger Williams U. L. Rev. 603, 629 (2006). So instructed, the jury returned a verdict against three of the defendant lead pigment manufacturers. See Peter B. Lord, 3 Companies Found Liable in Lead-Paint Nuisance Suit, PROVIDENCE J., Feb. 23, 2006, at A1. The Rhode Island Supreme Court unanimously reversed, holding that the plaintiff’s complaint did not state a viable claim for public nuisance, but did not reach the issue of culpability or fault. See Lead Industries, 951 A.2d at 435.
28. Tioga Public Sch. Dist., 984 F.2d at 921. See also Camden County, 273 F.3d at 540 (“Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce.”); City of Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp.2d 882, 910 (E.D. Pa. 2000) (“Gun manufacturers do not wrongfully ‘use’ their products; in fact, their products are legal. They assemble constituent parts and ship them out. They purchase advertisements. Thus, their distribution practices cannot be said to be an ‘unreasonable, unwarrantable, or unlawful use,’ … of their personal property which is elemental to a finding of nuisance.”), aff’d 277 F.3d 415 (3d Cir. 2002).
29. Restatement (Second) of Torts § 821B(1) (1979).
31. Id. See also Ganim v. Smith and Wesson Corp., 780 A.2d 98, 132 (Conn. 2001) (“The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.”) (internal quotation omitted).
32. Indeed, because personal injury mass tort actions involve individualized and fact-specific injury claims, many courts consider them to be unsuitable for class action certification. See, e.g., Smith v. Illinois Central R.R., 860 N.E.2d 332, 337-40 (Ill. 2006) and cases discussed therein.
33. Federal court multidistrict litigation is authorized under 28 U.S.C. § 1407. The statute allows “civil actions involving one or more common questions of fact” that are pending in different federal district courts to be transferred to one district “for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a).
34. City of Chicago v. Beretta, U.S.A. Corp., 821 N.E.2d 1099, 1114 (Ill. 2004) (citing Restatement (Second) of Torts § 821B cmt. g).
37. Lead Industries, 951 A.2d at 453-55
40. In re Lead Paint Litig., 924 A.2d at 501.
See Gifford, supra note 16, at 831.
43. Gifford, supra note 16 at 819.
44. See Lead Industries, 951 A.2d at 456 (“Public nuisance focuses on the abatement of annoying or bothersome activities.”).
45. City of Manchester v. National Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986). See also Gifford, supra note 16, at 820; Faulk & Gray, supra note 19, at 965.
46. See, e.g., City of Manchester, 637 F. Supp. at 656; Faulk & Gray, supra note 19, at 965.
47. See Gifford, supra note 16, at 820. See also Schwartz & Goldberg, supra note 10, at 568 (“[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.”)
48. See, e.g., Lead Industries, 951 A.2d at 455; In re Lead Paint Litig., 924 A.2d at 501-02; City of Philadelphia, 277 F.3d at 422; Appletree Square 1 Ltd. Partnership v. W.R. Grace & Co., 815 F. Supp. 1266, 1274 n.13 (D. Minn. 1993), aff’d 29 F.3d 1283 (8th Cir. 1994); Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 522 (Mich. Ct. App. 1992); City of Manchester, 637 F. Supp. at 656. Cf., City of Chicago, 821 N.E.2d 1099, 1132 (lack of control over the nuisance instrumentality is not an absolute bar to public nuisance liability but instead is “a relevant factor in both the proximate cause inquiry and in the ability of the court to fashion appropriate injunctive relief”.”)
49. See, e.g., Restatement (Third) of Torts: Products Liability §§ 1, 15 (1997). See generally Catherine Connors, Public Nuisance: Causation and Liability Theories available at http://www.nuisancelaw.com/learn/causation.
50. See, e.g., Lead Industries, 951 A.2d at 451; City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 114 (Mo. 2007); Amer. Cyanamid Co., 823 N.E.2d at 131; City of Chicago, 821 N.E.2d at 1113; Spitzer, 761 N.Y.S.2d at 201; Ass’n of Washington Public Hosp. Dists. v. Philip Morris Inc., 79 F. Supp.2d 1219, 1229 (W.D. Wash. 1999). See also Connors, supra note 49, at notes 1-12 and accompanying text.
51. See, e.g., City of Chicago, 821 N.E.2d at 1127.
52. See, e.g., City of St. Louis, 226 S.W.3d at 113-14.
53. City of Chicago, 821 N.E.2d at 1127. See also City of St. Louis, 226 S.W.3d at 114 (“In most cases, the plaintiff must establish actual causation by showing that the alleged harm would not have occurred “but for” the defendant's conduct.”)
54. See, e.g., City of St. Louis, 226 S.W.3d at 115; Amer. Cyanamid Co., 823 N.E.2d at 134.
55. See Scott A. Smith, Turning Lead Into Asbestos and Tobacco: Litigation Alchemy Gone Wrong, 71 Def. Couns. J. 119, 121 (2004).
58. See, e.g., City of St. Louis, 226 S.W.3d at 116; Amer. Cyanamid Co., 823 N.E.2d at 134-36; City of Toledo v. Sherwin Williams, Case No. CI 200606040, slip. op. at 7 (Ohio Ct. Common Pleas, Lucas Cty., Dec. 12, 2007).
59. Camden County, 273 F.3d at 539
60. Id. at 541. See also District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 650 (D.C. 2005) (in firearms public nuisance case, “declin[ing] to relax the common-law limitations of duty, foreseeability, and direct causation so as to recognize the broad claim of public nuisance the District has alleged.”); City of Chicago, 821 N.E.2d at 1138 (“[W]e conclude that the alleged public nuisance is not so foreseeable to the [gun] dealer defendants that their conduct can be deemed a legal cause of a nuisance that is the result of the aggregate of the criminal acts of many individuals over whom they have no control.”); Spitzer, 761 N.Y.S.2d at 201 (“[D]efendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm.”). Cf., Ganim v. Smith and Wesson Corp., 780 A.2d 98, 133 (Conn. 2001) (holding that causal remoteness deprived plaintiff of standing to sue firearms manufacturers for public nuisance).
61. Amer. Cyanamid Co., 823 N.E.2d at 139 (“[T]he conduct of defendants in promoting and lawfully selling lead-containing pigments decades ago, which was subsequently lawfully used by others, cannot be a legal cause of plaintiff's complained-of injury, where the hazard only exists because Chicago landowners continue to violate laws that require them to remove deteriorated paint.”) (emphasis in original).
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