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

Witt & Tani, TCPI 9. Liability without Fault?
“Anything which is injurious to health . . . or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or
property . . . is a nuisance.” Cal. Civ. Code, § 3479 (italics added). “A public nuisance is one
which affects at the same time an entire community or neighborhood, or any considerable number
of persons . . . .” Cal. Civ. Code, § 3480. . . .
“[P]ublic nuisances are offenses against, or interferences with, the exercise of rights
common to the public.” People ex rel. Gallo v. Acuna[, 929 P.2d 596 (Cal. 1997)]. “Of course,
not every interference with collective social interests constitutes a public nuisance. To qualify,
and thus be enjoinable [or abatable], the interference must be both substantial and unreasonable.”
Id. It is substantial if it causes significant harm and unreasonable if its social utility is outweighed
by the gravity of the harm inflicted. Id.
Santa Clara, SF, and Oakland . . . alleged that lead causes grave harm, is injurious to
health, and interferes with the comfortable enjoyment of life and property. Clearly their
complaint was adequate to allege the existence of a public nuisance . . . . The next question was
whether defendants could be held responsible for this public nuisance.
“[L]iability for nuisance does not hinge on whether the defendant owns, possesses or
controls the property, nor on whether he is in a position to abate the nuisance; the critical question
is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto
Redevelopment Agency v. Superior Court, 119 Cal. App. 4th 28, 39 [Cal. Ct. App. 2004] . . .)
Here, Santa Clara, SF, and Oakland alleged that defendants assisted in the creation of this
nuisance by concealing the dangers of lead, mounting a campaign against regulation of lead, and
promoting lead paint for interior use even though defendants had known for nearly a century that
such a use of lead paint was hazardous to human beings. . . .
Yet defendants claim that they may not be held liable on a public nuisance cause of action
because two Court of Appeal opinions have held that public nuisance is an inappropriate cause of
action against a product manufacturer for a nuisance caused by the product. They rely on the
Second District Court of Appeal’s decision in City of San Diego v. U.S. Gypsum Co.[ 30 Cal.
App. 4th 575 (Cal. Ct. App. 1995)] and the First District Court of Appeal’s decision in Modesto. .
. .
San Diego and Modesto are distinguishable from the case before us. Here, the
representative cause of action is a public nuisance action brought on behalf of the People seeking
abatement. Santa Clara, SF, and Oakland are not seeking damages for injury to their property or
the cost of remediating their property. Liability is not based merely on production of a product or
failure to warn. Instead, liability is premised on defendants’ promotion of lead paint for interior
use with knowledge of the hazard that such use would create. This conduct is distinct from and far
more egregious than simply producing a defective product or failing to warn of a defective
product . . . .
A representative public nuisance cause of action seeking abatement of a hazard created by
affirmative and knowing promotion of a product for a hazardous use is not “essentially” a
products liability action “in the guise of a nuisance action” and does not threaten to permit public
nuisance to “‘become a monster that would devour in one gulp the entire law of tort . . . .’”
529