OVER THE past several decades, difficulties in proving product liability claims against individual manufacturers have caused the plaintiffs' bar to turn to alternative theories of industry-wide liability. (1) The latest theory--the tort of public nuisance--has become the foundation for many lawsuits by state and local governments against entire industries for the harms their products allegedly have caused. The governmental entities in these suits seek reimbursement of the costs they claim were or will be incurred as a result of both legal and illegal uses of a product, such as the costs of police, medical and emergency services associated with the criminal use of handguns, the costs of public medical services expended on illnesses caused by cigarette smoking, monies spent for the removal of asbestos products from buildings, and public expenditures associated with testing children for blood lead levels and the inspection and abatement of buildings that contain lead-based paint.
Commentators have predicted that if these public nuisance lawsuits succeed, it will be the impetus for even broader claims against an even wider variety of products, from automobiles to alcohol to fatty foods. (2)
It is instructive to look at the cases that have attempted to use this tort where products allegedly have caused harm, to assess the judicial response, and to analyze whether this cause of action does or should have a viable future.
DEFINITIONS OF NUISANCE
Traditional nuisance law had nothing to do with products. Rather, it concerned the abatement of bothersome activities, usually conducted on a defendant's land, that unreasonably interfered either with the rights of other private landowners or, in the case of public nuisance, with the rights of the general public. (3)
Dean Prosser wrote:
No better definition of a public nuisance has been suggested than that of
an act or omission "which obstructs or causes inconvenience or damage to
the public in the exercise of rights common to all Her Majesty's subjects."
... It includes interference with the public health, as in the case of a
hogpen, the keeping of diseased animals, or a malarial pond; with the
public safety, as in the case of the storage of explosives ...; with public
morals, as in the case of houses of prostitution ...; with the public
peace, as by loud and disturbing noises ...; with the public comfort, as in
the case of bad odors ...; [or] with public convenience, as by obstructing
a highway.... (4)
Prosser complained that the law at times had become an "impenetrable jungle" in which the word "nuisance" had meant "all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie." (5) He suggested that courts dismiss nuisance claims "not connected with land or with any public right." More recently, courts have adhered to this suggestion and "the scope of nuisance law appears to have returned to its more narrow focus." (6)
The public entity lawsuits seek to broaden the scope of nuisance again and return it to the jungle from which it only just escaped.
Because of its necessary connection to property, environmental litigation is a natural vehicle for reliance on the law of nuisance, and plaintiffs often have used it to force industrial landowners to stop polluting and pay for the costs of environmental cleanup. (7) In these cases, classic public nuisance law correctly applies, and costs may be imposed on particular landowners for what they have done to or on the land. Even in environmental litigation, however, courts have rejected attempts to extend nuisance law to those who make or sell products, recognizing that the cause of action does not apply to the manufacturer who makes a polluting product but is not responsible for a polluting activity. (8)
For example, in City of Bloomington v. …