New Jersey Supreme Court Rejects the Public Nuisance Rationale in Lead-Paint Suits

In a decision that likely will have ripples reaching Rhode Island, the State Supreme Court of New Jersey has ruled that lead paint manufacturers cannot be held liable for lead-paint clean-up costs under “public nuisance” laws. If NJ municipalities want to take lead-paint manufacturers to court, they must do so under the rules of product liability law, which involve a substantially higher burden of proof. The Philadelphia Inquirer has the details…

The court said municipal and county officials can't sue paint manufacturers, which included DuPont Co. of Wilmington and Sherwin-Williams Co. of Cleveland, for creating a public nuisance with their lead-based coverings. Another defendant was American Cyanamid Co., which now is owned by Wyeth, the Madison, N.J., pharmaceutical company.

"Were we to find a cause of action here, nuisance law would become a monster," the state justices said in a 71-page opinion....

The court determined that the towns and counties failed to identify a special injury that could be compensated. It said the claim was essentially a product-liability issue, and falls under the state Product Liability Act, which excludes coverage for exposure to toxic material.

The New Jersey suit was among a number of cases filed by U.S. cities and states over lead-paint damages that have been thrown out. The Missouri Supreme Court ruled this week that St. Louis officials couldn't use the so-called nuisance theory to sue manufacturers over the costs of dealing with the paint.

But a Rhode Island jury ruled last year that Sherwin-Williams, NL Industries Inc. and Millennium Holdings L.L.C. were responsible for cleaning up problems created by their products. It was the industry's first such loss.

Richard Faulk, who has researched and written extensively on the subject of lead paint and lead paint law, offers this brief synopsis of the ruling…

The crux of the holding is the Court’s conclusion that the conduct of the defendants, who manufactured and sold a product which was legal at the time of its distribution, is not the type of conduct that “creates” a public nuisance. Instead, the nuisance is only “created” when the premises become dangerous through “deterioration and poor maintenance by the purchasers.”

Now, legal laypeople (like me) may be wondering how much impact a New Jersey ruling ultimately has on the affairs of Rhode Island. After all, the United States is a Federal system, where the different states are allowed to set their own legal rules. However, two explanations have already been advanced as to why the NJ ruling may impact the resolution of the RI lead paint case. One explanation comes via Jane Genova's Law and More blog, from a source identified only as a "brandname plantiff attorney"...

NJ courts have national standing on issues of strict liability doctrine. Prominent jurists such as William Brennen have sat on that court. In addition, the fundamental issue in this ruling is public nuisance. In MO, it was proof of causation or product ID. Since the plaintiff law firm Motley Rice has been involved in the NJ case, this can be construed as a significant blow to the firm's influence going forward. Also, the decision represents the end of the road for this issue in NJ. There is no where further to go.

As New Jersey goes so goes the nation (at least when it comes to product liability jurisprudence)? That’s not exactly confidence-inspiring proof of the rationality of our legal system.

A second, broader explanation comes from Mr. Faulk, who argues that the New Jersey court’s ruling is rooted in legal principles so fundamental, they date back to the Magna Carta and the structure of common law itself…

In New Jersey, as in Rhode Island and many other states, the legislature and regulatory authorities have allocated the primary responsibility for detecting and preventing lead risks to property owners. In Rhode Island, the trial court flatly ignored the impact of these mandates from other branches of government, holding that they were irrelevant to the “common law” remedy sought by the State. In New Jersey, however, the Supreme Court paid careful attention to the legislative mandates and properly recognized that their requirements were essential considerations in evaluating the scope and meaning of the remedy being pursued… Although the “common law” may have its sources solely within the judiciary, the people have increasingly imposed policies that regulate its discretion. These began as early as the Magna Carta and have proceeded through the industrial revolution to mature into today’s complex legislative and regulatory environment. The impact of these mandates cannot be ignored, as they were in Rhode Island, merely because a court is faced with a “common law” cause of action.

Law and More has more analysis here and here.