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Nuisance actions make the big leagues

In the common law we inherited from England, nuisance means a whole lot more than petty annoyance (although annoyances can also be nuisances). Nuisance is one of the oldest torts. As far back as the 1200s, English landowners were bringing nuisance actions against each other. The typical nuisance case involved one landowner doing something, like diverting a stream, that interfered with his neighbor’s property. A judge could order the offending landowner to cut it out – in the jargon, abate the nuisance.

Here in New Mexico, we still see that original type of nuisance action from time to time. In recent decades our courts ruled in favor of one homeowner who complained about a garden products plant that began processing bark and manure next door, and another, out in Curry County, who objected to a feedlot opening across the road. Going back a little further, a riding stable inside Albuquerque city limits was declared a nuisance in 1951.

Those cases all involved the classic form of nuisance, a landowner complaining about a neighbor. But our courts have long recognized a second form of nuisance, too, known as a public nuisance. A public nuisance affects many people, not just owners of adjacent properties. In a case involving an unfenced junkyard located within the town limits of Clayton, the New Mexico Supreme Court declared that “a public nuisance is one which adversely affects public health, welfare, or safety.” That’s a pretty broad scope.

Like most torts, nuisance can be thought of as a way of allocating costs. When a person or company engages in an activity that injures the public health, welfare or safety, who should pay for remedying it? The public? That doesn’t seem right if the public received none of the benefit. In recent years, local governments around the country have warmed to the idea of using nuisance actions as a means of making sure the cost of fixing a problem is paid by those who caused it.

For example, it has long been recognized that lead in paint affects the public health. In 1900, a magazine detailed the mechanism: “‘A familiar characteristic of white lead is its tendency to crumble from the surface, popularly known as chalking’; ‘It is also familiarly known that white lead is a deadly cumulative poison’; and ‘This noxious quality becomes serious in a paint that disintegrates and is blown about by the wind.'”

The magazine that published those dire warnings was an in-house publication of Sherwin-Williams Company. And yet, California courts recently found, Sherwin-Williams and other paint manufacturers ran advertisements promoting lead-based paint for interior use in homes until 1950.

According to a World Health Organization fact sheet, lead causes “anemia, hypertension, renal impairment, immunotoxicity and toxicity to the reproductive organs.” A large body of research shows that even at relatively low blood levels, lead reduces IQ scores in children. It is associated with behavioral issues ranging from ADHD to violent crime. “There is no known safe blood lead concentration,” WHO explains, adding: “The neurological and behavioral effects of lead are believed to be irreversible.”

It was perfectly legal for paint companies to promote the use of lead paint in residences during the first half of the 20th century. But it wasn’t harmless. As the California Court of Appeals observed last year, “Experts have reached a consensus ‘that lead-based paint is a predominant source of childhood lead exposure'” in houses built before 1978, when residential use of lead paint was finally banned.

Ten California cities and counties teamed up to sue Sherwin-Williams, NL Industries (formerly National Lead) and ConAgra, which had acquired the assets of a San Francisco paint manufacturer, alleging a public nuisance. At the end of a lengthy trial, the manufacturers were ordered to pay $1.5 billion into a remediation fund to abate the nuisance – that is, find and remove lead paint from millions of homes across the ten jurisdictions.

The manufacturers petitioned the U.S. Supreme Court to overturn the decision, asserting it was unfair and a violation of the first amendment to hold a company massively liable for advertisements that ran 68 and more years ago. The cities and counties responded that the issue wasn’t the advertisements but the public nuisance created by the advertisers. Last month, to the surprise of many, the high court declined to review the case.

The use of nuisance actions as a means of allocating the cost of public health initiatives could have many applications beyond lead paint. Ohio is currently going after opioid manufacturers, for instance. An arcane arbiter of neighborly quarrels from 13th century England has evolved into a potent strain of business litigation in early 21st century America.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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