Product Liability -- 2008

Rhode Island v. Lead Industries Ass'n, Inc.   (Rhode Island Supreme Court)

Public nuisance from lead pigment

Rhode Island sued and won a jury verdict against 3 former lead pigment manufacturers, ordering them to pay to remove lead paint from more than 300,000 homes in that state, at a cost estimated to be $2.4 billion. The suit, brought on a contingency basis by attorneys at Motley Rice, was premised on the claim that lead paint is a public nuisance. Lead paint has been banned in the United States since 1978, but poor maintenance of old walls in homes and apartments has led to elevated lead levels and associated health problems in children.

On January 30, the NAM and other business groups filed an amicus brief urging the Rhode Island Supreme Court to reverse the verdict because the trial court improperly rewrote the law of public nuisance. Our brief argued that public nuisance law should never be used to replace product liability law. Traditional standards of public nuisance law require that there be an injury to a common public right, that there must be some conduct by the defendants that created a public nuisance, and not merely injury, and that the defendants must have some control over the nuisance, both for imposing liability and for providing a remedy of abatement. The lower court also ignored the need to show proximate cause between a particular manufacturer's actions and an injury.

On July 1, 2008, the Rhode Island Supreme Court unanimously reversed the verdict. Creating new causes of action is a legislative function, and the danger from lead paint was created by landowners who allowed the paint to deteriorate, not by manufacturers who do not have control over proper maintenance in private homes. It ruled that claims against product manufacturers should be brought under product liability law, and concluded that "the state has not and cannot allege any set of facts to support its public nuisance claim." A proper public nuisance claim must allege interference with a public right, something different than an aggregate of private rights by a large number of people. It must also allege conduct of a quasi-criminal nature, and a defendant must have control over the nuisance "at the time the damage occurs." Allowing this suit would have created unpredictable liability for manufacturers in situations where they have no control over the ultimate use and/or maintenance of their products, and would constitute regulation by litigation. The NAM has been very active in opposing the attempted expansion of the public nuisance theory of liability by plaintiffs' lawyers who are attempting to avoid the straightforward requirements of product liability law. Similar cases have been brought against manufacturers of firearms, cigarettes, automobiles, gasoline additives, chemicals and electricity. Many of these also have been rejected.

This decision, coming as it does in the midst of a variety of cases in which plaintiffs are trying to expand notions of public nuisance into product liability, will likely be a very important precedent for other state courts to emulate.

Related Documents:
NAM brief  (January 30, 2008)