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

Witt & Tani, TCPI 9. Liability without Fault?
widespread, every person, firm and corporation conducting a business or profession in the City
suffered similar damage and thus the plaintiffs could not establish an injury different from that of
the public at large.
While not as widespread as the transit strike, the Madison Avenue and Times Square
closures caused the same sort of injury to the communities that live and work in those
extraordinarily populous areas. As the trial court in [one of the underlying cases] pointed out,
though different in degree, the hot dog vendor and taxi driver suffered the same kind of injury as
the plaintiff law firm. Each was impacted in the ability to conduct business, resulting in financial
loss. When business interference and ensuing pecuniary damage is “so general and widespread as
to affect a whole community, or a very wide area within it, the line is drawn.” While the degree
of harm to the named plaintiffs may have been greater than to the window washer, per diem
employee or neighborhood resident unable to reach the premises, in kind the harm was the same.
Leo v General Elec. Co. . . . is inapposite. . . . Plaintiffs were able to establish that their
injuries were special and different in kind, not merely in degree: a loss of livelihood was not
suffered by every person who fished the Hudson. By contrast, every person who maintained a
business, profession or residence in the heavily populated areas of Times Square and Madison
Avenue was exposed to similar economic loss during the closure periods. Thus, in that the
economic loss was “common to an entire community and the plaintiff[s] suffer[ed] it only in a
greater degree than others, it is not a different kind of harm and the plaintiff[s] cannot recover for
the invasion of the public right.” RESTATEMENT (SECOND) OF TORTS § 821C, cmt. h.
Notes
1. Private attorneys general in public nuisance? Should private individuals be able to bring
claims for public nuisance? According to Professor Thomas Merrill, the rule that allows private
parties to bring public nuisance claims arose out of a “mistaken reading of an old precedent.”
Professor Merrill writes that the doctrine rests on a sixteenth-century English case that Merrill
contends correctly refused to allow a private party to bring an action for public nuisance:
In a separate opinion, one of the judges, Fitzherbert, argued that under certain
circumstances private persons should be allowed to sue for what would otherwise
constitute a public nuisance. He offered the hypothetical of a defendant who digs a
trench across a highway, causing injury to a horse and rider. The obstruction of the
highway would be a public nuisance, subject to indictment in local criminal court
(the “leet”). Fitzherbert thought that the injured rider would nevertheless also have
an action “to recover his damages that he had by reason of this special hurt.”
Fitzherbert’s hypothetical was cited much later by English and American courts and
by the authors of the Restatement, to mean that the injured rider could sue for public
nuisance. What Fitzherbert more likely meant was that the action for public
nuisance did not preclude the rider from bringing a separate action for damages
based on what in his day was called an action on the case or what we would today
call negligence. In other words, digging the trench in the road gave rise to two
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