February 5, 2015

Can a legal, non-defective product be a public nuisance?

By Can a legal, non-defective product be a public nuisance?

In the last decade, California was one of a group of states and cities that sued sellers and manufacturers of lead paint on the theory that those companies had contributed to a “public nuisance.” Public nuisance is a very vague term. Generally, it is defined as “an unreasonable interference with a right common to the general public.” Because it is so vague, governments often use public nuisance suits to regulate things they think harm the public. For example, gun dealers were sued on the theory that firearms contribute to a public nuisance. California even sued General Motors under this theory for manufacturing cars that contribute to global warming. The lead paint suits are only the latest example.

The sale of lead paint has been illegal since 1978, but California argues that deteriorating paint in private homes – paint sold before 1978 – creates a significant health hazard. Because removing lead paint from millions of homes is expensive, California would like the courts to make the companies pay for it through a nuisance suit.

This argument could have severe consequences. Lead paint was perfectly legal when it was installed in homes. If sellers of legal products that comply with all laws and regulations can be held liable decades after selling the product, they will have a strong incentive not to do business in the state. The supply of many useful and desirable products would decrease as companies tried to avoid massive lawsuits. Moreover, it would violate a basic principle of due process – that people should be able to tell whether conduct violates the law before engaging in it. Vague public nuisance doctrine encourages governments to target unpopular products for political gain, and makes it nearly impossible for businesses to know if their conduct will trigger a lawsuit decades later.

Fortunately, most courts have not accepted such arguments. Appellate courts in New Jersey, Illinois, Rhode Island, and elsewhere have refused to find lead paint sellers liable in public nuisance for selling the product when it was legal. But a California trial court disagreed; it required three defendants to pay over a billion dollars for selling lead paint in California. The Court of Appeal will soon have the opportunity to review that decision. If this suit is successful, it is not far-fetched to expect similar lawsuits against other makers of lawful products. Could McDonalds be held liable for a public nuisance because overindulgence in fast food can lead to obesity? If California is to expand public nuisance law so drastically, it should be done by the legislature, not the courts.

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