Beware of plaintiffs' new uses of old tort theories to avoid product identification.

• Author: Childs, John C.
• Position: Products liability litigation

Expanding tort theories and state fraud statutes to eliminate product identification makes for bad tort law and undermines good public policy

* Plaintiff A seeks compensation for the shooting and the permanent disability of her son, a victim of gun violence. The police never recovered the gun. She sues most of the firearms manufacturers in the country.

* Plaintiff B wants to recover for the medical expenses and other damages related to the lead poisoning her son has suffered. She sues the former lead paint and pigment manufacturers, but she cannot identify the lead product that allegedly caused her son's injury.

In both these cases, plaintiffs face significant barriers to recovery under traditional product liability theories. One essential requirement of a product liability claim is that plaintiffs identify the manufacturer whose product caused the harm.(1) When plaintiffs cannot identify a particular product manufacturer, they have turned to collective liability theories--such as market share, enterprise liability, alternative liability, concert of action, or civil conspiracy to circumvent that requirement.(2)

These collective liability theories have not fared well in court in recent years,(3) so the plaintiffs' bar has turned to developing new law to circumvent product identification. They are recasting old tort theories. Some scholars have labeled this new trend as the creation of "social torts" because plaintiffs are pushing the legal limits in a way to engage in social reforms owing to their perceptions that legislatures have been unresponsive.(4)

What are some of plaintiffs' newest attempts to avoid the product identification requirement? They include the use of the traditional tort theories of public nuisance, negligence and consumer fraud. Although it is not clear this early in the campaign how successful plaintiffs ultimately will be, they have had limited success in some areas, and some courts have been sympathetic. Faced with these challenges, the defense bar must vigilantly oppose the application of these traditional theories to expand liability. Manufacturers can and should defend themselves on both legal and public policy grounds.

PUBLIC NUISANCE DOCTRINE

1. Traditional Application

   Traditionally, courts have defined public nuisance as an act or omission that obstructs or causes inconvenience or damage to the public in the exercise of rights common to all.(5) Despite this broad definition, public nuisance cases typically involve wrongful conduct arising out of defendants' use of property or current conduct on identified premises that legislators have declared a public nuisance.(6)

   Because of the public nuisance doctrine's root in real property, most jurisdictions have refused to apply the doctrine to claims arising from manufacturers' sale of defective products that caused harm.(7) Despite the apparent rejection of the public nuisance doctrine in product liability cases, more than 30 cities and counties recently have asserted a public nuisance claim against the firearms manufacturers.(8) Public entity plaintiffs in this most recent wave of litigation also have alleged public nuisance claims against other manufacturers--for instance tobacco companies and former lead pigment and paint manufacturers.(9)

   For example, the City of Chicago sued the firearms manufacturers under the public nuisance doctrine. Its complaint alleged:

   Defendants intentionally and recklessly design, market, distribute and sell firearms to persons whom defendants should know will bring those firearms into Chicago, causing thousands of firearms to be possessed and used in Chicago illegally, which results in a higher level of crime, death and injuries to Chicago citizens, and a higher level of fear, discomfort and inconvenience to the residents of Chicago. Their conduct thereby causes a significant and unreasonable interference with the public health, safety, welfare, peace, comfort and convenience, and ability to be free from disturbance and reasonable apprehension of danger to person and property. The complaints against former lead paint and pigment manufacturers typically allege that the manufacturers created an environmental hazard that unreasonably interfered with the health, safety, peace, comfort or convenience of the users of the buildings or residents. For example, the Rhode Island Attorney General alleged that the defendants created an environmental hazard that continues and will continue to unreasonably interfere with the health, safety, peace, comfort or convenience of Rhode Island residents, thereby constituting a public nuisance.

   Plaintiffs have had mixed results, sometimes in the same jurisdiction. For example, while some individual plaintiffs' public nuisance claim against some firearms manufacturers survived a motion to dismiss in the Circuit Court of Cook County in Illinois, another judge from the same court dismissed the City of Chicago's public nuisance claim with prejudice.

   In the individual personal injury case, Ceriale v. Smith & Wesson Corp., several families of gun victims sued firearms manufacturers, distributors and retailers under a public nuisance theory. The complaint alleged that defendants created and maintained a firearms distribution channel through which thousands of guns were funneled to children in the City of Chicago and that the long-term cumulative effect of these practices constituted a public nuisance, creating a climate of violence among the citizens of Chicago.

   Despite the fact that Illinois nuisance law follows the traditional approach, in the trial court Judge Jennifer Duncan-Brice allowed the plaintiffs' public nuisance claim to survive a motion to dismiss, citing three reasons. First, she found that the allegations demonstrated a significant interference with the public health, public safety and the public comfort. Second, the complaint alleged that the defendants' conduct violated certain Chicago ordinances prohibiting the sale and possession of firearms to minors. Third, the plaintiffs sufficiently pleaded that the defendants' conduct was of a continuing nature or had produced a permanent or long-lasting effect and as the defendants knew or had reason to know, had a significant effect upon the public right. The judge then concluded that the plaintiffs had sufficiently pleaded a public nuisance claim. Even though the firearms manufacturers argued that the public nuisance doctrine does not apply to the sale and manufacture of products, the court rejected that contention.(10)

   In City of Chicago v. Beretta U.S.A. Corp., the city sued a group of gun manufacturers, distributors and retailers for having created a public nuisance in Chicago, as quoted above. Judge Stephen Schiller granted the defense motion to dismiss the City's complaint in its entirety with prejudice in an oral decision on September 15, 2000.(11)

   Inconsistent decisions abound throughout the United States.(12) They are difficult to distinguish. They indicate that some judges are sympathetic to injured plaintiffs and willing to ignore traditional limits on the legal theories to allow recovery. For judges who desire to engage in judicial activism, the public nuisance theory provides an ostensible, plausible, though flawed, basis.

   With the recent wave of public nuisance claims, it appears that courts will have many more opportunities to wrestle with this issue.

2. Departure from Current Law

   Courts' expansion and application of the public nuisance doctrine to the traditional product liability area is a significant departure from current law, would drastically reduce the importance of product identification, and would expand tort liability. The public nuisance doctrine should not apply to the manufacture of a product because the nuisance doctrine deals with conduct arising from the wrongful use of property, as noted above.

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