Tort of public nuisance in public entity litigation: return to the jungle? In the wake of the tobacco settlement, public entities have seized on this neither warranted nor appropriate action to avoid product liability law.

• Author: Handler, Lauren E.

OVER THE past several decades, difficulties in proving product liability claims against individual manufacturers have caused the plaintiffs' bar to turn to alternative theories of industry-wide liability. (1) The latest theory--the tort of public nuisance--has become the foundation for many lawsuits by state and local governments against entire industries for the harms their products allegedly have caused. The governmental entities in these suits seek reimbursement of the costs they claim were or will be incurred as a result of both legal and illegal uses of a product, such as the costs of police, medical and emergency services associated with the criminal use of handguns, the costs of public medical services expended on illnesses caused by cigarette smoking, monies spent for the removal of asbestos products from buildings, and public expenditures associated with testing children for blood lead levels and the inspection and abatement of buildings that contain lead-based paint.

Commentators have predicted that if these public nuisance lawsuits succeed, it will be the impetus for even broader claims against an even wider variety of products, from automobiles to alcohol to fatty foods. (2)

It is instructive to look at the cases that have attempted to use this tort where products allegedly have caused harm, to assess the judicial response, and to analyze whether this cause of action does or should have a viable future.

DEFINITIONS OF NUISANCE

Traditional nuisance law had nothing to do with products. Rather, it concerned the abatement of bothersome activities, usually conducted on a defendant's land, that unreasonably interfered either with the rights of other private landowners or, in the case of public nuisance, with the rights of the general public. (3)

Dean Prosser wrote:

No better definition of a public nuisance has been suggested than that of an act or omission "which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects." ... It includes interference with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives ...; with public morals, as in the case of houses of prostitution ...; with the public peace, as by loud and disturbing noises ...; with the public comfort, as in the case of bad odors ...; [or] with public convenience, as by obstructing a highway.... (4) Prosser complained that the law at times had become an "impenetrable jungle" in which the word "nuisance" had meant "all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie." (5) He suggested that courts dismiss nuisance claims "not connected with land or with any public right." More recently, courts have adhered to this suggestion and "the scope of nuisance law appears to have returned to its more narrow focus." (6)

The public entity lawsuits seek to broaden the scope of nuisance again and return it to the jungle from which it only just escaped.

ENVIRONMENTAL LITIGATION

Because of its necessary connection to property, environmental litigation is a natural vehicle for reliance on the law of nuisance, and plaintiffs often have used it to force industrial landowners to stop polluting and pay for the costs of environmental cleanup. (7) In these cases, classic public nuisance law correctly applies, and costs may be imposed on particular landowners for what they have done to or on the land. Even in environmental litigation, however, courts have rejected attempts to extend nuisance law to those who make or sell products, recognizing that the cause of action does not apply to the manufacturer who makes a polluting product but is not responsible for a polluting activity. (8)

For example, in City of Bloomington v. Westinghouse Electric Corp. (9) the Seventh Circuit held that Indiana nuisance law did not apply to Monsanto, the manufacturer of PCBs that were contained in the hazardous waste discarded by another company. Similarly, the federal district court in E.S. Robbins Corp. v. Eastman Chemical Co. (10) held that under Alabama law, the manufacturer of a chemical that had been spilled by others was not liable under the tort of public nuisance.

ASBESTOS: NUISANCE REJECTED

In the late 1970s, the Environmental Protection Agency sent letters to all school districts in the United States asking them to identify all asbestos-containing materials in their schools and warning of potential risks of friable asbestos products. That initiative resulted in a wave of lawsuits by municipalities, boards of education and others seeking reimbursement for the costs of removing asbestos-containing building materials from schools and other buildings.

Because it was often not known who made or sold the particular asbestos products that were incorporated into the buildings decades earlier, some plaintiffs sought to impose liability under industry-wide theories that did not require specific proof of individual liability. (11) Where product manufacturers could be identified, plaintiffs relied on nuisance law to avoid the product liability doctrine that purchasers cannot recover in tort for purely economic loss.

During the 1980s, a number of courts rejected this use of the tort of public nuisance to impose product liability. In 1992, the Michigan Court of Appeals in Detroit Board of Education v. Celotex Corp. summed up the view of these courts:

We note initially that all courts that have considered the question have rejected nuisance as a theory of recovery for asbestos contamination.... [T]he idea of a wrongful use of property (as distinguished from an improper condition of property) is basic to the legal concept of a nuisance. For another thing, the role of the "creator" of a nuisance, upon whom liability for nuisance caused injury is imposed, is one to which manufacturers and sellers seem totally alien. 63 Am. Jut. 2d, Product Liability, [section] 593, pp. 843-844. We agree and hold that manufacturers, sellers or installers of defective products may not be held liable on a nuisance theory for injuries caused by the defect. To hold otherwise would significantly expand, with unpredictable consequences, the remedies already available to persons injured by products. (12) Other asbestos decisions have rejected attempts to extend nuisance beyond liability for harm from activity on a property to liability for harm from a product. City of San Diego v. United States Gypsum Co. followed the holding in Detroit Board of Education because "nuisance cases `universally' concern the use or condition of property, not products," adding, "Prosser agrees: `If nuisance is to have any meaning at all, it is necessary to dismiss ... cases which have applied the term to matters not connected either with land or with any public right as mere aberration....'" (13)

Courts also have noted that once the defendant sells a product, it no longer has control to abate the alleged nuisance--a necessary element of nuisance liability. (14) In Appletree Square 1 Ltd. v. W.R. Grace & Co., the federal district court, applying Minnesota law, found that Minnesota nuisance law does not apply where the alleged wrongdoer no longer owns or controls the property. "Once W.R. Grace manufactured and sold the fireproofing, ... it no longer controlled the fireproofing and consequently a nuisance action cannot be maintained against it," the court held. (15)

In Tioga Public School District v. U.S. Gypsum Co., the Eighth Circuit rejected public nuisance liability for products at least in part based on the unacceptable policy that adoption of the tort would establish. In an oft-cited quotation, the court observed that if a statutory provision regarding public nuisance were permitted to encompass common law product liability, nuisance law "would become a monster that would devour in one gulp the entire law of torts." (16)

TOBACCO: BASHING FAVORITE

Public nuisance was one of the causes of action pleaded in the filing of lawsuits by...