Public Nuisance Claims After ConAgra

By Steven Czak

This Note examines the continuing harms of lead-based paint and attempts by cities and states to hold manufacturers and distributors liable for abatement under the public nuisance doctrine. Such suits have stretched traditional conceptions of public nuisance, particularly on the threshold issue of whether pervasive lead paint in residences infringes on a common right held by the public. This Note reviews the major lead paint public nuisance cases from across the country. The plaintiffs were unsuccessful in each case for a variety of reasons until ten California counties prevailed in People v. ConAgra in November 2017. While subsequently reduced by the appellate court, and further reduced in a postjudgment settlement, the trial court initially awarded the plaintiffs a staggering $1.15 billion in abatement funds. Across the six states that have adjudicated such cases, there exists a great discontinuity not only in outcome but also in the manner by which each state court reached its decision.

This Note proposes that future state courts follow the approach taken by the Rhode Island Supreme Court in carefully adhering to the historical boundaries of public nuisance and deferring to the legislature when the amorphous tort is used as an attempt to remedy a complex social issue. Given that no common right exists among private homeowners to be free of lead paint, as traditionally conceived under the doctrine, the claim of public nuisance is simply inapposite. ConAgra impermissibly expanded the bounds of public nuisance by finding a common right where none exists and should not be followed by future courts when adjudicating public nuisance claims.