Rhode Island: NAMIC, Others Argue Against Expansion of Public Nuisance Tort in Lead Paint Case

In a brief submitted to the Rhode Island Supreme Court, NAMIC and other organizations contend that a lower court was wrong to hold lead pigment manufacturers liable for damages and remediation costs under public nuisance theory.

The brief asserts that if the lower court ruling in State of Rhode Island v. Lead Industries Association, Inc. et. al. is allowed to stand, the potential for expansive liability would go far beyond lead paint manufacturers to many product makers and distributors.

“In departing significantly from the tort’s core requirements, the trial court created a near-defenseless claim,” the brief asserts. “Any business that ever lawfully made or sold a product could be held liable in Rhode Island at the whim of the Attorney General if the product category as a whole were misused or not properly maintained by certain members of the public and, as a result, became associated with a potential hazard.”

The trial court erred by not adhering to the traditional required elements of the tort of public nuisance, according to the brief, including a public injury, unreasonable conduct, control of the instrumentality, or causation.

The result, the brief asserts, amounts to an action to which there is no defense. “Under the trial court’s application of public nuisance law in this case, the government would have near limitless ability to impose liability on an industry if its products could at some point contribute to an inherent risk to enough people,” the brief asserts. “The only elements that would need to be proved would be that (1) a company made a product that, according to a speculated chain of commerce, could be in Rhode Island; (2) the class of products to which the company’s product belongs could be harmful to a sufficient number of people, regardless of whether the product is used properly, misused or not properly maintained; and (3) those people ought not to have to bear their injuries.”

Other state courts hearing similar claims have rejected expansion of public nuisance in lead paint litigation, the brief points out.

In addition to NAMIC, the brief was filed on behalf of The Coalition for Litigation Justice, Inc., National Association of Manufacturers, National Federation of Independent Business Legal Foundation, American Chemistry Council, American Insurance Association, and American Tort Reform Association

Oral arguments in the case are expected to be heard in May.

Direct questions to NAMIC State Affairs Manager Paul Tetrault.

Posted: Tuesday, February 12, 2008 12:00:00 AM. Modified: Friday, February 15, 2008 2:42:55 PM.

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