Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
Note
1. Not with a bang but a whimper. Many critics have contended that this is for the good.
Lead-poisoning rates, they observe, have declined sharply over the past two decades. “In 1998,
3,437 children tested before they entered school in Rhode Island had elevated lead levels, which
can cause neurological problems ranging from loss of intelligence to behavior and attention
problems.” More recent studies found that the “the number of new cases dropped to 614.”
Moreover, “[d]uring that period, state, federal and local governments have spent millions of
dollars cleaning up lead paints.” Lord, “R.I. high court overturns lead-paint verdict,” supra.
The California litigation brought under much the same theory has had a different fate:
Cty. of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292 (2006)
MIHARA, J.
A group of governmental entities acting for themselves, as class representatives, and on
behalf of the People of the State of California, filed a class action against a group of lead
manufacturers. The governmental entities alleged that the manufacturers . . . should be required
to abate the public nuisance created by lead paint. . . . The superior court sustained the
manufacturers’ demurrers to the public nuisance causes of action. . . .
We conclude that the superior court’s rulings were erroneous as to plaintiffs’ public
nuisance . . . cause[] of action. We therefore reverse the judgment. . . .
The public nuisance cause of action . . . . alleged that the People had “a common right to
be free from the detrimental [e]ffects . . . of Lead in homes, buildings, and property in the State of
California.” Yet “Lead is present on large numbers of homes, buildings, and other property
throughout the State of California,” “is injurious to the health of the public” and constitutes a
nuisance. “Defendants are liable in public nuisance in that they created and/or contributed to the
creation of and/or assisted in the creation and/or were a substantial contributing factor in the
creation of the public nuisance” by: “[e]ngaging in a massive campaign to promote the use of
Lead on the interiors and exteriors of private residences and public and private buildings and for
use on furniture and toys;” failing to warn the public about the dangers of lead; selling, promoting
and distributing lead; trying to discredit evidence linking lead poisoning to lead; trying to stop
regulation and restrictions on lead; and trying to increase the market for lead. Plaintiffs alleged
that the lead distributed by defendants “inevitably has deteriorated and/or is deteriorating and/or
will deteriorate thereby contaminating these homes, buildings, and property” and exposing people
to lead. The remedy sought was abatement “from all public and private homes and property so
affected throughout the State of California.”
Defendants . . . . claim that no public nuisance cause of action may be pleaded against a
manufacturer of a product that creates a health hazard because such hazards are remediable solely
through products liability. . . . [T]hey claim that, even where the facts would otherwise constitute
a public nuisance, a cause of action does not lie because the underlying cause of the public
nuisance is a product for which only a products liability cause of action will lie.
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