Over the last decade, local and state governments have increasingly looked to public nuisance litigation as a vehicle to address broad socio-economic issues, hoping to shift the cost of systemic remedies onto the targeted private industry du jour. From gun violence to groundwater contamination, climate change to sub-prime loans, the developing body of public nuisance litigation reflects attempts to twist the boundaries of a long-established and limited tort.

On July 1, the Rhode Island Supreme Court ended the state's longest running civil case -- consuming nine years, two jury trials and a complicated "abatement" proceeding -- when it unanimously reversed the 2006 public nuisance verdict against three lead paint manufacturers that some estimated would cost the defendants more than $2 billion in abatement costs. Significantly, the 2006 judgment marked the first time a lead paint manufacturer was held liable for damages caused by poor maintenance in private homes decades after the paint was lawfully sold.

The court rooted its evaluation and conclusion on the traditional elements of public nuisance tort under Rhode Island law. The court unanimously concluded that the state could not meet the essential elements of the public nuisance tort. In particular, the state failed to establish that the defendant controlled the alleged nuisance in the affected properties at the time injury happened. And second, the state could not demonstrate that the alleged harm – childhood lead poisoning in private homes – constituted an interference with a “public right.” Rick Faulk and John Gray represented various amicus curiae in the proceedings. Additionally, one of their law review articles was cited repeatedly by the Court in support of its opinion. See Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 MICH. ST. L. REV. 941 (2007). As discussed in their most recent paper, the Rhode Island court’s opinion, and particularly the approach it followed in evaluating the state’s claim against the traditional requirements of public nuisance tort, may inform courts addressing similar claims involving not only lead paint, but also broader theories such as climate change or groundwater contamination.

Download Court's opinion (PDF: 354KB).

Download Amici Curiae Brief (PDF: 39MB).

Link to Washington Legal Foundation paper (PDF: 85KB).