California Appellate Court Upholds Public Nuisance Claim Against Lead Paint Manufacturers
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California Appellate Court Upholds Public Nuisance Claim Against Lead Paint Manufacturers

Tuesday, January 16, 2018By Richard Alexander

The scope of public nuisance law has taken on new dimensions in California. The case decided by a California appellate court was based on serious harm caused to thousands of children who live in homes with lead-based paint.

In San Francisco alone, approximately 22,000 housing units contain lead-based paint hazards. Most of those units are occupied by low and moderate-income residents. In older homes such as these (which were largely built before 1950), lead exposure for children is primarily the result of lead paint deterioration into contaminated dust inside the home. In the cities that filed the case, 10,875 of their child residents had been poisoned by lead in 2009 alone. The CDC has reported that even low levels of lead exposure can cause permanent neurological impairment in children.  

The original lawsuit that began in 2000 was filed by Santa Clara County. San Francisco and other counties eventually joined in the litigation against ConAgra Grocery Products Company, NL Industries, Inc., and the Sherwin-Williams Company. The filing alleged that the defendants marketed and promoted the use of lead paint with the awareness that the product was poisonous to children. The legal claim was that the use of this paint created a public nuisance that continues to negatively affect the health of the children in these communities.

In 2013, the defendants were issued a $1.15 billion-dollar judgment in Santa Clara Superior Court. The court held that the defendants were liable for the injuries to children who suffered lead-based paint poisoning. The recent decision in the appellate court confirmed that the injury was a result of a nuisance created by the defendants in homes built before 1951. The court then returned the case to trial court to determine the dollar amount necessary for abatement.  

The decision of the court is a victory for the victims: it requires the defendants to contribute to a fund to remediate the lead-based paint in the affected homes. The legal implications are also meaningful. The theory of liability was based on public nuisance law in California, which requires that the defendant knowingly produced or assisted in creating an unreasonable interference with the rights of the public. Public nuisance law has not historically been used to redress harms caused by defective products. Even more surprising is the court’s conclusion that companies can be held liable for defective products that were sold decades ago and only later discovered to be detrimental to the public’s health and safety. The lesson of the verdict is that anything that harms public health can be a public nuisance.

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