February 23, 2015

PLF files amicus brief in California lead paint case

By Chris Kieser Attorney

A few weeks ago, I blogged about California’s current effort to have millions of homes and businesses in California declared “public nuisances” because they contain lead paint. The law of public nuisance is very vague: it’s defined as “an unreasonable interference with a right common to the general public,” terms that are not well understood by any lawyer, judge, or law professor in the country. The state prevailed in the trial court against several manufacturers and distributors of lead paint: the court declared lead paint a public nuisance and ordered the companies to pay over $1 billion to fund an abatement program administered by government agencies. Worse, the court declared that if home or business owners choose not to participate in that program, their names will go on a public list, basically proclaiming themselves guilty of maintaining a public nuisance on their property.

Last week, we filed an amicus brief urging the California Court of Appeal to reverse that decision. We argue that declaring lead paint to be a public nuisance violated the due process rights of both the paint companies and California property owners. First, by declaring the sale of a product that was legal at the time to be “unreasonable,” the court made it impossible for the paint companies or anyone else to know what will expose them to liability in the future. Moreover, the trial court denied property owners even the chance to participate in the hearing before it transformed their property—millions of homes, businesses, and apartment buildings—into nuisances. Finally, our brief emphasized that broad and uncertain public nuisance law will hurt California’s economy by encouraging businesses not to operate in the state.

This is one of the most extraordinary tort cases in California history, with the potential of affecting millions of homeowners, apartment residents, and businesses throughout the state. As we point out in the brief, New Jersey, Rhode Island, and other states have refused to expand their tort laws in such an arbitrary fashion. At a time when California’s economy is still running slowly under already-excessive burdens, the state’s courts should hesitate to add this crushing and unjust burden on the state’s businesses and property owners.

You can read our brief here.

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ConAgra Grocery Products v. California

The State of California brought a lawsuit in 2000 to abate the alleged public nuisance caused by five companies’ manufacture and sale of lead paint at a time when lead paint was legal. The trial court found three of the companies to be liable for creating a public nuisance and ordered them to pay over a billion dollars into an abatement fund. As a consequence, the court opinion declares almost all properties in California that have lead paint on them to be per se public nuisances – exposing property owners to massive tort liability. The companies appealed and PLF filed an amicus brief arguing that argue that declaring lead paint to be a public nuisance violated the due process rights of both the paint companies and California property owners. The decision from the U.S. Supreme Court was unfavorable in that the cert petition was denied.

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