Tuesday, May 27, 2008
In his latest Findlaw column, Tony Sebok discusses the lead paint nuisance suits filed by the State of Rhode Island against the lead paint industry. Sebok explains how the theory of public nuisance has been applied to lead paint contamination in Rhode Island homes:
The theory is that by creating and selling lead pigment, the paint industry interfered with the public right to a healthy residential environment. Accordingly, whether or not the industry was negligent, it -- like the owner of the fallen tree in the example drawn from Blackstone -- should be required to remove the paint, so that the public can enjoy its right to live without being exposed to a toxin.
A negligence suit would have asked for damages. But as noted above, a public nuisance claim, by its nature, asks not for money damages but a court injunction. Here, the desired type of injunction would have directed the industry to pay the cost of removing ("abating") the lead paint from any home where it may be. This would be a massive endeavor whose real cost, if done nationwide, no one really knows. Yet it is clear that, even in a small state like Rhode Island, having to pay abatement costs could bankrupt the entire paint industry.
Sebok's next column will address how the Rhode Island Supreme Court should rule on the defendants' appeal.