DEALING WITH A POLITICAL ISSUE THROUGH THE TORT SYSTEM:
The Major New Lawsuit Regarding Children And Lead Paint

It has been well known for almost fifty years that lead paint is dangerous to children. The vast majority of lead paint used in homes in America was sold between 1925 and 1960. Atlantic Richfield Company's predecessor stopped making lead pigment in 1946, and Sherwin-Williams Company ceased manufacture in 1947. The research concerning lead paint's danger was well developed by 1960 - as evidenced, for example, by the fact that the sale of interior residential lead paint was prohibited in New York City after December 31, 1959. Finally, in 1978, its use in homes was banned.

In many earlier homes, however, lead paint still exists. Because it is expensive to remove, a question remains as to who will pay for its removal. Last week, a suit began in Providence, R.I. which will resolve that very question.

On the one side of the suit is the Attorney General of Rhode Island, Sheldon Whitehouse. He has teamed up with Ness Motley, one of the law firms that negotiated the $240 billion tobacco settlement. On the other side, as defendants, are eight well-known corporations who produced lead paint--companies such as The Sherwin Williams Co. and Dupont.

Like the tobacco litigation, the lead paint suit is designed to achieve something which, in a different world, could have, and should be, achieved through politics. As such, it fits into a modern trend that I have also noted in prior columns, such as a recent piece on the "Big Fat" fast food litigation, of shifting political issues into the legal arena by framing them as tort actions.

Parallels to the Tobacco Litigation

In other respects, as well, the lawsuit feels a little like the suits brought against the tobacco industry in the late '90's. For instance, as in the tobacco litigation, the legal basis of the suit is as much the result of necessity as design.

The state attorney generals who first sued Big Tobacco relied on the doctrine of unjust enrichment because they realized that the usual approaches in tort, such as products liability, were not succeeding.

Similarly, the state attorney general in Rhode Island is using a very obscure doctrine--public nuisance--because in a number of other products liability suits against the paint manufacturers cases brought under more conventional theories, such as products liability, were dismissed.

Landlords and Owners Should, But Often Don't, Remove Lead Paint

The truth is, lead paint should be removed by the landlords and owners of old houses that are coated in lead paint. But, for a variety of reasons, that is not happening.

In Providence, that's not because the landlords are too dispersed, as one might think. Indeed, a recent study from Brown University suggests that the vast majority of houses in Providence coated in lead paint are owned by just 204 landlords.

Clearly, another solution is necessary - though the option of billing the irresponsible landlords for that solution is always open.

Not A Reimbursement Suit: Why Big Paint Seems Unlike Big Tobacco

Accordingly, one might think that the new lead paint suit is, in essence, a suit for reimbursement: The government will handle this public health problem, but seek reimbursement for costs it believes were wrongfully imposed on the public - because for instance, lead paint was marketed or used even after its dangers were known, or should have been removed to satisfy landlord's responsibility to offer tenants habitable premises.

A similar reimbursement suit was brought by Rhode Island against the tobacco companies. The state argued that because cigarettes were a defective product marketed through fraud, the tobacco companies - not the state - should have paid for the Medicare health expenses of sick smokers.

In fact, though, the lead paint suit is not really a reimbursement suit. To be sure, their complaint alleges consumer fraud, but those allegations are going to be hard to substantiate. The paint industry itself did research in the 1950s into the perils of lead paint, and largely stopped selling it, as noted above, in 1960.

Unlike the tobacco industry, then the paint industry seems to have responsibly addressed the health risks it uncovered. So unless Attorney General Whitehouse has a secret memo up his sleeve - suggesting the paint industry knew of the risks but chose to ignore them, at least for a few years - it is highly unlikely that he will be able to demonstrate that "Big Paint" engaged in the same sort of culpable conduct that sunk Big Tobacco.

In fact, it is obvious that Attorney General Whitehouse does not intend to win by showing how evil Big Paint was. His entire strategy is pinned on proving that lead paint is a public nuisance and then demanding that Big Paint pay for its abatement. Public nuisance is an obscure doctrine, but one of its hallmarks is that one does not have to prove that the defendant acted in a culpable fashion in order to win relief.

A public nuisance is an unreasonable interference with a right common to the general public. A member of the general public may bring a suit for damages caused by a public nuisance under limited circumstances. However, as the Rhode Island Supreme Court held when it rejected the defendants' motion to dismiss this case, it is not only affected members of the general public who can go after public nuisances in court. The Attorney General has standing, by virtue of his power to enforce the laws of Rhode Island.

The test for whether an activity is a nuisance is whether it is "an unreasonable interference" with the public's enjoyment of its rights. However, it would be a mistake to assume that the expression "unreasonable" means the same thing in nuisance law as it does in negligence.

Crucially, an act can be a nuisance even if it is nonnegligent. Negligence is
unreasonable conduct that causes harm to someone to whom one owes a duty. The word "unreasonable" has a variety of definitions in tort law, but in the context of lead paint, it would mean that the manufacturers failed to used reasonable care in designing or marketing their product. But according to S821B of the Restatement of Torts (Second), to prove a public nuisance one must merely show that the activity "involves a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience." The activity does not also have to fail the negligence
test.

The First Important Big Paint Question: Nuisance and the Use of Land

There are two real questions at stake in the Rhode Island Public Nuisance suit. The first is whether a public nuisance has to arise from the use of land, or whether it can arise from an activity, like manufacturing and marketing a product. The court should find for the Attorney General on this one - a public nuisance need not arise from the use of land.

By comparison, the private nuisance doctrine developed to help deal with the unintended and rather unpleasant consequences of the Industrial Revolution. When a neighbor opened a tannery next door, he could be forced to abate his activities through a suit for private nuisance. Private nuisance has always been, and still is a tort limited to the misuse of property.

The doctrine of public nuisance also began with reference to land. And some states, such as New York, still treat it this way. But it has long since expanded to include other obnoxious activities, such as interfering a public highway, which can be achieved without owning any land at all. The Attorney General should easily win on this point.

The Second Important Big Paint Question: A Right Common to the General Public?

For example, a fire hazard which could, in theory, spread to anyone's house is a public nuisance - even if it is known in advance that it could not spread to every single house in town. Thus, the mere fact that not every house in Providence has lead paint will not mean the suit will fail.

Still, the state has a difficult burden. It must prove that the current distribution of lead paint in old houses is so pervasive that lead paint poisoning is like communicable disease, which could strike anyone at anytime. It might argue, for instance, if science supports it, that children who make play dates with children in lead-paint-contaminated houses may be poisoned, too.

But the need to prove that lead paint is like a virus, itself shows how the Big Paint suit is stretching public nuisance doctrine, perhaps to its breaking point. So it is at this stage where the Rhode Island courts are going to have to do some serious thinking.

They must ask themselves the following question: In what sense is the risk of getting ill in a house that has not been maintained by its owner - for owners, after all, could always remove the paint - a violation of a right "common to the public?" The owner's dereliction of duty seems, instead, specific to that particular house.

All of Rhode Island's citizens have a right not to be injured by poisons in their homes. But one could argue that that right is not "common to the public," the way the right to drive on the highway is.

Instead, the right not to be not to be injured by poisons in one's home is a private law right - one which should be actionable against those people who have breached those duties. On this theory, affected tenants could sue all 204 Providence landlords for failure to remove the paint and ensure habitable premises. But they could not sue the paint companies - who, in a sense, did nothing wrong, since they (apparently) took the paint off the market as soon as they learned it was dangerous.

Using Public Nuisance Doctrine As An End Run Around Products Liability?

In February 2000, a Bronx judge dismissed a similar complaint against the lead paint industry in Sabater v. Lead Paint Assoc. In doing so, the court cautioned against turning using nuisance law to achieve an end run around products liability law.

This caution is worth recalling now. As its proponents have noticed already, public nuisance law gives tremendous power to the executive of a state to achieve through tort law what she could not achieve through the legislative process. But that is exactly why it is restricted to a narrow set of truly public rights.