"Public Nuisance" Provides Latest Vehicle for Judges, Lawyers and Politicians to Usurp the Legislative Process and Regulate our Lives
Across America, responsible voters and legislators fed up with lawsuit abuse have enacted tort and class-action lawsuit reform, with immediate and beneficial effect.
Stymied by these successful reform efforts, trial lawyers have found a new catch-all litigation paradigm that threatens our notions of fundamental judicial fairness: the ancient concept of "public nuisance."
This potential monster, which can target everything from gun manufacturers to food merchants to municipal power plants, could make class action lawsuit abuse seem harmless in comparison.
Under well-established common law, a "nuisance" is a wrongful act that unreasonably annoys, inconveniences, discomforts or damages another person's interests. Most nuisance cases involve "private nuisance," which interferes with a private individual's use or enjoyment of property. For example, an unreasonably noisy stereo can constitute a private nuisance to a neighbor.
Whereas a private nuisance offends only a particular person's property, a "public nuisance" instead offends a right common to the general community or public at large. For instance, under traditional law, pedestrians are inconvenienced by having to avoid a sidewalk obstruction.
Recovery in a lawsuit for "public nuisance," however, is only available if a particular plaintiff has suffered some unique damage not suffered by the public at large. In the sidewalk obstruction example, for instance, a person who has tripped and fallen suffers unique damage and is therefore entitled to recovery for the public nuisance. Members of the general public who haven't suffered any harm from the sidewalk obstruction, in contrast, have no right to recovery.
Leave it to creative trial lawyers, however, to morph this doctrine of public nuisance into their latest grab-bag of jackpot justice.
Today, plaintiffs' lawyers and even state attorneys general are increasingly using public nuisance litigation to persecute disfavored industries when democratically-elected legislatures refuse to do so.
For instance, a particularly egregious illustration of this abuse occurred in Rhode Island over the past year.
In Rhode Island v. Atlantic Richfield Co., the Rhode Island government sued four manufacturers who once sold lead-based paint. Rhode Island alleged that the companies somehow created a "public nuisance" by selling the paint even though residential sale of lead paint was perfectly legal before 1978. There was absolutely no evidence that the targeted companies' conduct actually harmed any particular person, nor was there any ability to identify the companies' paint in any particular residence.
Despite this, the court ruled that merely manufacturing and marketing the paint, even though it was perfectly legal at the time, was enough to impose liability on the defendants. Even in the absence of evidence that any defendant's product produced harm to any person where the "nuisance" paint existed.
In other words, companies can be held liable by trial lawyers and politically-ambitious attorneys general even without any identified harm, suffered by any identified person, by any identified product, in any identified location. This monstrous concept eviscerates the fundamental concept of our legal system that liability requires proof of wrongful conduct and consequent harm.
Worse, this misuse of "public nuisance" allows arrogant judges, politicians and ambulance-chasing attorneys to create a system of social engineering and judicial legislation when they fail to get their way at the legislative level or in the free marketplace of ideas.
Consider for a moment the types of activists who will abuse this vehicle if not stopped in their tracks before it's too late.
Global-warming alarmists will sue local power plants that provide the energy on which our lives depend for the "public nuisance" of emitting everyday carbon dioxide. Gun-control zealots will seek creative ways to continue targeting firearms manufacturers. "Consumer rights" activists will sue mortgage lenders for providing loans to low-income homebuyers who can't obtain credit anywhere else. Sanctimonious health busybodies will increasingly target food and drink producers, and not just fast-food merchants.
Milk? Too much lactose. Bagels? Too many carbohydrates. Peanuts? They are killers.
Even more alarming is the fact that these lawsuits need not actually succeed for them to have extremely damaging consequences. For instance, even the threat of litigation can intimidate companies into changing their behavior, however innocent, and drive companies' stock prices downward.
Simply put, the relatively unknown "public nuisance" paradigm presents a powerful new vehicle by which abusive judges can usurp legislative authority, impose de facto taxes upon disfavored industries and circumvent governmental separation of powers.
Unless reined in now before it spreads like a cancer, "public nuisance" threatens our fundamental concepts of judicial fairness and restraint. We cannot afford to wait. March, 22, 2007