State of Rhode Island v. Lead Industries Association, Inc.

(Rhode Island Supreme Court)

• Opposing Expansion of Public Nuisance Liability

NELF filed an amicus brief in support of the Lead Industries Association in this case before the Rhode Island Supreme Court.  The case involves attempted expansion of public nuisance law to hold businesses liable for unforeseeable prospective harms.  The trial court allowed the Rhode Island Attorney General to proceed to a favorable jury verdict on a public nuisance claim against lead pigment manufacturers for abatement of alleged lead paint hazards in Rhode Island buildings.  In doing so the trial court rejected a number of limitations on traditional common law public nuisance liability.  These limitations include the need to prove both actual and proximate causation of the alleged harm and control by the defendants over the instrumentality allegedly causing that harm.  Here there was no proof linking any defendant manufacturer’s pigment to the lead paint in any specific Rhode Island building allegedly requiring abatement.  Moreover, it is the building owners, not manufacturers who sold lead pigment to paint makers decades ago, who have the ability to maintain lead paint on building surfaces so as to prevent the risk of exposure.  The trial court further ignored the traditional rule that precludes aggregating private nuisances (here, conditions inside numerous private residences) to find a public nuisance and Rhode Island case law generally precluding recovery for anticipated, as opposed to actual, harm.  NELF focused its amicus brief on review of academic sources criticizing the trial court’s expansion of public nuisance law and out-of-state decisions rejecting similar attempts, arguing that a decision sustaining the trial court’s approach would place Rhode Island well outside the mainstream.  NELF further argued that the trial court’s expansion of public nuisance law is against public policy because, inter alia: (1) there is no deterrent value to imposing unforeseeable, no-fault liability on parties who lawfully sold products decades earlier; (2) public policy supports assigning responsibility for wrongs to the “cheapest cost avoiders” (in this case, current property owners); and (3) the assignment of legal responsibility and determination of appropriate remedies for the risks associated with lead paint are most appropriately addressed by legislatures, not the judiciary, and have already been addressed by the Rhode Island Legislature in a comprehensive statutory scheme.  If the Rhode Island Supreme Court affirms the trial court decision, the precedent may well be followed in other states.