author: Richard Faulk
The classic black-letter definition of a public nuisance is "an act or omission which obstructs or causes inconvenience or damage in the exercise of rights common to all."2 As discussed in the last module, the concept of public nuisance is poorly understood and has been the subject of heated debate for more than a century. Much of this current confusion can be traced to the Restatement (Second) of Torts, beginning with Section 821B which states that:
- A public nuisance is an unreasonable interference with a right common to the general public.
- Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
- 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
- whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
- 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.
Whenever a legal standard uses such fuzzy and ambiguous terms as "unreasonable interference," "significant interference," "public peace," "public comfort," and "public convenience," it creates opportunities for good lawyers to argue, judges to provide guidance, and jurors to interrupt what they believe or want these terms to mean in the context of the case presented to them and the outcome being sought in that case.
To assist everyone in determining just what is, and is not, a public nuisance, the Restatement (Second) of Torts drafted companion public nuisance sections and comments to each section. This module looks at case law and the comments to applicable Restatement (Second) of Torts sections in an attempt to penetrate the jungle that continues to grow around the law of public nuisance.
What is a Public Nuisance?
- Type of Harm - Interference with a Public Right
- Degree of Harm - Substantial and Unreasonable
- Type of Conduct:
What is a Public Nuisance?
Type of Harm - Interference with a Public Right
According to the Restatement (Second) of Torts, "[a] public nuisance is an unreasonable interference with a right common to the general public."3 The key element in this definition of public nuisance claim (in contrast to a private nuisance claim) is that the "inconvenience," "damage," or "interference" must be to a public right - not a private one. This requires proof that the injury is common to the general public.4 Historically, public nuisances were generally restricted to obstructions of public highways or navigable waterways.5 Over time, the list of what could be considered a public nuisance grew to include: noxious and offensive trades that interfered with health and comfort (1700s); noxious trades or business that polluted navigable waterways and polluted air (mid to late 1800s); and disorderly taverns and similar enterprises on moral grounds (late 1800s).6 As this list illustrates, a public right is collective in nature.
The Restatement (Second) of Torts also states that a person's
Not all interferences with public rights, however, are public nuisances. The nuisance must also produce a common injury, or be dangerous or injurious to the general public.8 Numerous commentators, including authors who favor the expansion of public nuisance, severely criticize courts that allow plaintiffs to use public nuisance as a means to address what are essentially personal injury cases.9 The "key inquiry" is whether the public will be injured by the offending conduct while exercising their common rights.10
Consider the classic public nuisance claim against a party for allowing a tree to block a public road. Everyone would agree that the fallen tree interferes with the public right to drive on that road. Thus, a government could seek an injunction to stop the blockage even if no one ever actually drove down the road. Conversely, if the tree blocked a neighbor's driveway, or the entrance to a commercial shopping plaza or church, a governmental entity could not bring a public nuisance claim because no public right was violated because the public does not own the property on which the tree fell, and there is no public right of access to private property.11
This is why the manufacture and distribution of lawful products will rarely, if ever, cause a violation of a public right. Products tend to be purchased and used by individual consumers. Therefore, any harm a product causes is to an individual or a discrete group of individuals. This is true even if the use of the product is widespread and the manufacturer's or distributor's conduct is unreasonable. For example, say a fast-food chain sold millions of defectively produced cheeseburgers, causing millions of people who ate them to become obese, have poor health or just become ill. Regardless of the number of person affected, the injuries caused by fast-food chain are still to the private rights of individuals (i.e., standard consumer tort or contract rights), and not a violation of the rights of the general public (even if described as an .unreasonable interference. to the nation's health). The sheer number of persons affected cannot transform individual injuries into a communal injury unless the term "public right" is altered and expanded beyond its understood boundaries of the past 900 years.12
Degree of Harm - "Substantial" and "Unreasonable"
To be a nuisance, a defendant's interference with the public right must be "substantial." It cannot be a "mere annoyance," a "petty annoyance," a "trifle," or a "disturbance of everyday life."13 The interference must be substantial, objectionable to the ordinary reasonable man, and one that materially interferes with the ordinary physical comfort of human existence according to plain, sober, and simple notions.14
The harm must also be unreasonable. Traditionally, this requires a risk-benefit analysis weighing the gravity and probability of a risk occurring against the utility of the activity or conduct. This test was a judicial attempt to control the potentially "disruptive consequences of injunctive relief" and allowed courts to find that some interferences with the use and enjoyment of land were not actionable.15
Type of Conduct
Historically, the conduct associated with a public nuisance claim has been described as being quasi-criminal.16 Conduct is considered quasi-criminal when it is unreasonable under the circumstances and could cause injury to someone who is exercising a common, societal right. When such conduct is uncovered, public nuisance law provides a means for governments to stop it.17 Based on his extensive review of the case law, Professor William Prosser also thought that a public nuisance was "a criminal interference with a right common to all members of the public."18 He believed that its use should be limited to situations where there was a violation of a criminal statute.19
Ultimately, the language of the Restatement (Second) of Torts lowered the requisite conduct from that of "criminal interference" to just "unreasonable interference" with a public right.20 The factors to be considered when deciding whether conduct is unreasonable include: whether it involves a significant interference with public health, safety, peace, comfort, or convenience; whether it is proscribed by a statute; and whether it is of a continuing, long-lasting nature and the defendant knows that it has a "significant effect" on this ongoing harm.21 Yet, when examining conduct, "the role of 'creator' of a nuisance, upon whom liability for nuisance-caused injury is imposed, is one to which manufacturers and sellers [of products] seem totally alien because nuisances are not created when a product is sold; they are created when a product's purchasers or other third party uses or disposes of the project."22 Traditionally, public nuisance law has not supported recovery simply because the "manufacture and sale of a product[was] later discovered to cause injury."23
The Role of Statutes and Regulations in Determining "Reasonableness"
Through legislation, regulations, and ordinances, federal, state, and local governments are able to define specific activities as being a public nuisance. Too often, the statutes are general in nature and do not define what a nuisance is other than using broad, vague, and ambiguous language. This trend conflicts with the general position that criminal conduct be defined specifically and clearly.24 If a public nuisance claim is based on such statutes, a court or jury need not make a finding of unreasonableness because the legislature has already made that determination.
However, when governmental entities have actively regulated a particular kind of conduct or human activity by statute, ordinance, or administrative regulation, conduct that could be characterized as unreasonable under common law no longer subjects the actor to tort liability if it complies with the statute, ordinance, or regulation.25 In these instances, courts accept that the legislative or regulatory body has determined that such conduct is acceptable to society and is therefore not unreasonable.26 This is particularly true in pollution cases, which were almost routinely dealt with by filing nuisance suits until federal, state, and local governments established comprehensive sets of legislative and administrative regulations dealing with pollution.
One example of such governmental regulations can be found in lead paint litigation. Over the years, many states have enacted product liability acts (setting boundaries for lawsuits seeking damages based on harm caused by a product) and lead paint acts (addressing harm caused by exposure to deteriorating lead paint).27 Some courts look to these acts for guidance, respecting the role of the legislature and the separation of powers between the branches of government.28 Other courts, however, claim that such statutes are irrelevant for claims brought under the umbrella of the "common law."29
"Controlling" the Nuisance
Historically, the party who controlled the public nuisance was the party who owned or operated the property at the time of abatement.30 This is because the "inability to allege that the defendants ha[ve] a legal right to abate the nuisance is fatal to [a] nuisance claim."31 Control is a necessity because a primary purpose underlying public nuisance is the ability of public authorities to 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.32
In Detroit Board of Education v. Celotex Corporation, for example, a school board (representing hundreds of public and private schools seeking to recover their asbestos removal costs) brought a public nuisance action against multiple classes of defendants (manufacturers, distributors, and installers of asbestos products) because statutes of limitation barred it from bringing products liability claims.33 Agreeing that the public nuisance claim was not barred by statutes of limitation, the trial court allowed the case to proceed.34 The appellate court rejected the school board's attempt to spin its product-based claim as a public nuisance claim, stating that "the public would not be served by neutralizing the limitation period by labeling a product liability claim as a nuisance claim."35 The appellate court grounded part of its reasoning in control, noting that with respect to claims based on commercial transactions:
Another court has noted that "nuisance cases 'universally' concern the use or condition of property, not products."37 The court went on to cite Prosser for the proposition that: "[i]f 'nuisance' is to have any meaning at all, it is necessary to dismiss a considerable number of cases which have applied the term to matters not connected either with land or with any public right, as mere aberration."38 In the context of the lead paint litigation, one court found that "the conduct that has given rise to the public health crisis is, in point of fact, poor maintenance of premises where lead paint may be found by the owners of those premises."39 The court chastised the plaintiffs' attempt to "ignore the fact that the conduct that created the health crisis is the conduct of the premises owner," noting that plaintiffs' theories to separate conduct and location "eliminate entirely the concept of control of the nuisance."40 Thus, as a general rule, manufacturers and culpable former landowners are not liable for abatement because they no longer control the property.41
Once a manufacturer sells a product to a third party, there should be no dispute that it lost control over the product regardless of the method used to assess control.42 This is one of the bedrock rules that courts have used to justify their decision to dismiss public nuisance suits brought against manufacturers of products, including lead pigment manufacturers. For example, in City of Chicago v. American Cyanamid Company, the Illinois Court of Appeals held that:
Traditionally, a plaintiff must show that it was foreseeable that each defendant's conduct would create the public nuisance.44 Therefore, the plaintiff's injury must be the type of injury that a reasonable person would see as a likely result of the defendant's conduct. Otherwise, the tort of public nuisance becomes limitless if courts allow a defendant's liability to be based on something other than independently tortious conduct, violation of a statute, or conduct that is intentional and unreasonable. A New York court rightly received adverse reactions after stating that "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."45 The Eighth Circuit Court of Appeals went so far as to state that to allow recovery for public nuisance "regardless of the defendant's degree of culpability or the availability of other traditional tort law theories of recovery" would allow nuisance to become "a monster that would devour in one gulp the entire law of tort."46 The New Jersey Supreme Court recently agreed with this sentiment in the context of the lead paint litigation.47
7. Restatement (Second) Of Torts § 821B cmt. g (1979).Thus, the 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. Id.
8. Id. Thus, water pollution that affects only a few (e.g., fifty or a hundred lower riparian owners) people of their ability to use the water is not necessarily become a public nuisance. If the pollution, however, prevents the use of a public beach or causes a large fish kill such that an entire community is affected, it becomes a public nuisance. Id. The Connenicut Supreme court noted that the "test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights". Ganim v. Smith and Wesson Corp., 780 A.2d 98 (Conn. 2001). See also 58 Am. Jur. 2d Nuisances § 39 (2002).
9. See Antolini, supra note 34, at 771 n.54. (agreeing that .allowing purely personal injury claims to masquerade as public nuisance claims is inappropriate. because a "personal injury does not reflect injury to the community") (citations omitted).
11. Id. at 562-63. Some courts appear willing to blurr the boundaries of what constituents a public nuisance to include conduct that interfers with the public's right to .the health, safety, peace, comfort or convenience of the general community.. Id. (citing Citizens for Preservation of Waterman Lake,420 A.2d 53, 59 (R.I.1980)). Still, most courts have held that communal-based injuriers are "wholly distinguishable" from personal injuries based on the use of product. Id. at 563.
22. Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1993) (quoting 63 AM. JUR. 2D Products Liability § 593).
25. Restatement (Second) of Torts § 821B cmt. f (1979). The only means of pursuing a public nuisance claim for such lawful conduct would be to show that .the law regulating the defendant.s enterprise is invalid.. Chicago, 821 N.E.2d at 1124.
26. For example, a company would not be subject to liability under public nuisance theory for air pollution if its air emissions are regulated by an environmental statute or authorized by a permit, as it keeps its air emissions within those limits. Schwartz, supra note 21, at 566-67.
27. See Ariz. Rev. Stat. § 36-1674 (1996) (Arizona); Cal. Health & Safety Code § 17920.10(a) (2002) (California); Colo. Rv. Stat. Ann. § 25-7-1101 (1997) (Colorado); Conn. Agencies Regs. §§ 19a-111-1, 19a-111-4, 21a-82(a) (1992) (Connecticut); Code Del. Regs. § 40 700 003 (1978) (Delaware); Ga. Code Ann. §§ 31-41-1 (1994) (Georgia); 410 Ill. Comp. Stat. 45/2, 45/9 (1973) (Illinois); Iowa Admin. Code r. 641-68.5 (2004) (Iowa); Ky. Rev. Stat. Ann. § 211.905 (1974) (Kentucky); La. Rev. Stat. Ann. § 1299.27 (1973) (Louisiana); Me. Rev. Stat. Ann. Tit. 22, § 1321 (1973) (Maine); Md. Code Ann., Envir. § 6-819 (1992) (Maryland); Mass. Gen. Laws ch. 111, § 197 (1993) (Massachusetts); Minn. Stat. Ann. § 144.9504 (1995) (Minnesota); Mo. Ann. Stat. §§ 701.300, 701.308 (1993) (Missouri); N.H. Admin. R. Ann. HE-P 1613.02 (1995) (New Hampshire); N.J. Admin. Code tit. 8, §§ 51-1.3, 51-6.1 (2005) (New Jersey); N.Y. Pub. Health Law § 1373 (1970) (New York); N.C. Gen. Stat. §§ 130A-131.7, 130A-131.9C (1997) (North Carolina); Ohio Rev. Code Ann. §§ 3742.37, 3742.38 (1994) (Ohio); S.C. Code Ann. §44-53-1430 (1993) (South Carolina); Vt. Code R. 13 140 054 (1994) (Vermont); Wis. Stat. Ann. §§ 254.11, 254.166 (1993) (Wisconsin).; see also e.g., Ind.Code §§34-20-1-1, et seq. (1978), Mich. Comp. Laws § 600.1483 (1961), N.J. Stat. Ann. § 2A:58C-1 to-11 (1987). In re Lead Paint Litigation, 924 A.2d 484, 494 (N.J. 2007).
28. See In re: Lead Paint Litigation, No. A-73-05, 2007 WL 1721956 at *8 (N.J. June 15, 2007) (.It is only in light of this statutory framework that the arguments of the parties concerning the viability of a cause of action sounding in public nuisance can be evaluated..).
29. Decision and Order, Rhode Island v. Atlantic Richfield Co., C.A. No. 99-5226, 5 & 11 (R.I. Super. Ct., March. 20, 2003) (not requiring the state to adopt statutory and regulatory definitions of lead poisoning because such rules and regulations have no bearing on a common law claim).
30. Detroit Bd. of Educ. v. Celotex Corp., 493 N.W. 513, 521-22 n.8 (Mich. Ct. App. 1992) (stating that .liability of a possessor of land is not based upon responsibility for the creation of the harmful condition, but upon the fact that he has exclusive control over the land and the things done upon it and should have the responsibility of taking reasonable measures to remedy conditions on it that are a source of harm to others.).
31. Manchester v. Nat.l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986) (.If the defendants exercised no control over the instrumentality, then a remedy directed against them is of little use.). But see Chicago, 821 N.E.2d at 1129 (suggesting that the element of control is a consideration and an .issue,. but not . . . a prerequisite to the imposition of nuisance liability. [quoting People v. Brockman, 574 N.E.2d 626, 635 (Ill. 1991)]).
32. Gifford, supra note 11, at 820. Other judicial opinions make clear that liability for nuisance-both public and private-is premised not on the creation of a nuisance but rather on the defendant.s current control of the instrumentality causing the nuisance. Id. (citing Roseville Plaza Ltd. P.ship v. U.S. Gypsum Co., 811 F. Supp. 1200 (E.D. Mich. 1992); City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 2d 888, 911 (E.D. Pa. 2000), aff.d 277 F.3d 415 (3d Cir. 2001); Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245, 266 (D.N.J. 2000), aff.d 273 F.3d 536 (3d Cir. 2001); Stevens v. Drekich, 178 Mich. App. 273, 278, 443 N.W. 2d 401, 403 (Mich. Ct. App. 1989). Professor Gifford also notes that other courts have held defendants liable for merelying creating or participating in carrying on a public nuisance, even if they are not in control of the product that caused nuisance.s creation at the time of the injury. But other courts have held defendants liable for a public nuisance when they create or participate in carrying on a nuisance, even if they are not in control of the instrumentality causing the nuisance at the time of the injury. E.g., Court.s Decision, Rhode Island v. Atlantic Richfield Co., C.A. No. 99-5226, *17-18 (R.I. Super. Ct. Feb. 26, 2007); In re: Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F. Supp. 2d 593, 628-29 (S.D.N.Y. 2001); United States v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960 (W.D.N.Y. 1989); City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002) ((creation and supply of illegal, secondary market for firearms)); Illinois v. Brockman, 574 N.E.2d 626 (Ill. 1991) (suit against generators and transporters of waste to a dump); Malezi v. S.W. Rogers Co., Inc., 24 Va. Cir. 122 (Va. Cir. Ct. 1991); see also e.g., Court.s Decision, Rhode Island v. Atlantic Richfield Co., C.A. No. 99-5226, *17-18 (R.I. Super. Ct. Feb. 26, 2007).
33. 493 N.W. 2d 513 (Mich. App. 1992). This case was filed in 1992. Evidence showed that the Board was aware of asbestos-related health risks by 1979 when it submitted asbestos removal cost estimates to the EPA. Id.
39. In re: Lead Paint Litigation, 924 A.2d 484, 501 (N.J. 2007) (finding that the .presence of lead paint in buildings is only a hazard if it is deteriorating, flaking, or otherwise disturbed;. thus .it is the premises owner who has engaged in the .conduct [that] involves a significant interference with the public health,.. id. § 821B(2)(a), and therefore is subject to an abatement action.).
41. See, e.g., Maisenbach v. Buckner, 272 N.E.2d 851, 854 (Ill. App. Ct. 1971) (.Where a landowner clearly has no right to control the property after he sells it to another, he likewise can have no duty to third persons injured in connection with the property after the sale..); Restatement (Second) Of Torts § 839 cmt. d (1979) (.[A] vendee or lessee of land upon which a harmful physical condition exists may be liable under the rule here stated for failing to abate it after he takes possession, even though it was created by his vendor, lessor or other person and even though he had no part in its creation..).
42. Schwartz, supra note 10, at 567 (citing, Manchester, 637 F. Supp. at 656. (.[L]iability for damage caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance..); Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126, 133 (D.N.H. 1984); Johnson County v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984); see also City of Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 911 (E.D. Pa. 2000) (defendant.s lack of control after the sale defeated public nuisance claim based on their subsequent illegal misuse), aff.d 277 F.3d 415 (3d Cir. 2002); City of Bloomington v. Westinghouse Elec..Corp., 891 F.2d 611, 613-14 (7th Cir. 1989) (PCB manufacturers not liable for creation of public nuisance based on improper disposal)).
43. 823 N.E.2d 126, 139 (Ill. Ct. App. 2005), app. den. 833 N.E.2d 1 (Ill. 2005); see also Young v. Bryco Arms, 821 N.E.2d 1078, 1091 (Ill. 2004) (.[D]efendants. conduct is not a legal cause of the alleged nuisance because the claimed harm is the aggregate result of numerous unforeseeable intervening criminal acts by third parties not under defendants. control..); District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 650 (D.C. Ct. App. 2005), cert. denied, 126 S.Ct. 399 (2005) (.[T]he alleged public nuisance is not so foreseeable to the 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.) (emphasis in the original) (internal quotations omitted); cf. Martinez v. Pacific Bell, 225 Cal. App. 3d 1557, 1565 (Cal. Ct. App. 1990) (finding that robbery was intervening cause to alleged nuisance that purportedly drew criminal activity to area).
44. Under the doctrine of remoteness, plaintiffs alleging .harm flowing merely from the misfortunes visited upon a third person by the defendant.s acts [are] generally said to stand at too remote a distance to recover.. Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268-69 (1992). .Remoteness is an aspect of the proximate cause analysis, in that an injury that is too remote from its causal agent fails to satisfy tort law.s proximate cause requirement . . . .. Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 921 (3d Cir. 1999).
45. Gifford, supra note 11, at 828-29 (citing United States v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960, 968 (W.D.N.Y. 1989) (quoting State v. Schenectady Chems., Inc., 459 N.Y.S.2d 971, 979 (N.Y. 1983); New York v. Fermenta, 608 N.Y.S.2d 980, 985 (N.Y. 1994) (.[A] plaintiff in an action to abate a public nuisance is not required to demonstrate negligence or willful conduct on behalf of the defendant..)).