Modules
About UsPublic Nuisance and Product Liability: A Comparison
authors: 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. Read More »
Public Nuisance: Public Entity Litigation and Contingency Fee Counsel
authors: David Axelrad and Lisa Perrochet
Syllabus
A contingent fee is “[a] fee charged for a lawyer’s services only if the lawsuit is successful or is favorably settled out of court... Contingent fees are usually calculated as a percentage of the client’s net recovery...”1 This module examines the use of contingency fee counsel by governmental entities in pursuing civil actions, with an emphasis on public nuisance actions. The inherent problems that arise when governments invest their powers in private contingency fee counsel are magnified in public nuisance litigation, where the remedy is abatement. Read More »
Analysis of the New Jersey Supreme Court Decision in "In Re Lead Paint Litigation"
authors: Steven P. Benenson & Borden R. Gillis
Summary Introduction
In in re Lead Paint Litigation, 191 N.J. 405 (2007), the New Jersey Supreme Court held that various governmental entities did not state a viable common law nuisance claim for economic or personal injury damages against the former manufacturers of lead paint and pigment. The Court ruled that: 1) the conduct of land owners that fail to maintain their properties, rather than the remote conduct of the manufacturers of lead pigment paint that sold a lawful and then unregulated consumer product, was the proximate cause of any injury to the public good; 2) the plaintiffs, as public entities, lacked standing to sue for damages; and 3) permitting such claims would defeat the legislative purposes of New Jersey’s Lead Paint Act (“LPA”)1 and Products Liability Act (“PLA”)2, the latter of which is the exclusive remedy for harm caused by a defective product.3
Public Nuisance: Insurance Issues
authors: Donna L. Wilson and Marla H. Kanemitsu
Syllabus
Since the 1990s, the tort of “public nuisance” has emerged as a new weapon of states and municipalities looking to spread the economic cost of large-scale societal ills.1 To date, it has been used in attempts to impose liability on asbestos manufacturers for asbestos-related illnesses, poultry farmers for water pollution, former lead pigment and paint manufacturers for childhood lead poisoning, and firearm manufacturers for contributing to the black-market for handguns. The newest wave of public nuisance suits seek to address global warming by holding auto manufacturers, electricity producers and others liable for the effects of greenhouse gas emissions, and secondary market investors for the subprime mortgage crisis. As these descriptions reflect, the damages sought by the plaintiffs are virtually boundless. Read More »
Public Nuisance: Causation and Liability Theories
author: Catherine Connors
Syllabus
The previous modules have discussed how the concept of public nuisance has been a subject of confusion generally. The proof needed to hold someone liable for – to say that he “caused” – such a nuisance is no exception to this rule. This module attempts to clarify the causation principles that apply to public nuisance claims. Read More »
State of Rhode Island v. Lead Industries Association
author: Thomas R. Bender
Summary Introduction
The Supreme Court of Rhode Island held that the State of Rhode Island “cannot allege” facts sufficient to state a claim for common law public nuisance against lead pigment manufacturers. It based its decision on two basic factors: 1) although the manufacturers placed lead pigment into the stream of commerce, they did not control it at the time it harmed the children; and 2) that harm did not constitute an interference with a public right for purposes of a common law public nuisance. Read More »
Court Decisions Regarding the Subject of Contingency Fees
authors: David Axelrad and Lisa Perrochet
Syllabus
Private attorneys hired to prosecute public nuisance actions must be, and must appear to be, neutral. Nonetheless, government plaintiffs frequently seek to augment their prosecutorial resources by retaining private outside counsel on a contingent fee basis to pursue public nuisance claims. This type of retention gives the government's attorney a financial stake in the outcome of litigation that creates an appearance of impropriety affecting the integrity and neutrality of the government's prosecution. Read More »
Public Nuisance: Defining the Tort
author: Richard Faulk
Syllabus1
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 Read More »
Public Nuisance: A Historical Perspective
author: John Gray
Syllabus1
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 Read More »