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

Witt & Tani, TCPI 9. Liability without Fault?
(providing that “[w]henever a nuisance is alleged to exist, the attorney general . . . may bring an
action in the name of the state . . . to abate the nuisance”).
. . .
This Court has defined public nuisance as “an unreasonable interference with a right
common to the general public.” . . . “[I]t is behavior that unreasonably interferes with the health,
safety, peace, comfort or convenience of the general community.” . . . Put another way, “public
nuisance is an act or omission which obstructs or causes inconvenience or damage to the public in
the exercise of rights common to all.” . . .
This Court recognizes three principal elements that are essential to establish public
nuisance: (1) an unreasonable interference; (2) with a right common to the general public; (3) by a
person or people with control over the instrumentality alleged to have created the nuisance when
the damage occurred. . . .
A necessary element of public nuisance is an interference with a public right—those
indivisible resources shared by the public at large, such as air, water, or public rights of way. The
interference must deprive all members of the community of a right to some resource to which they
otherwise are entitled. See RESTATEMENT (SECOND) TORTS § 821B, cmt. g at 92. The
Restatement (Second) provides much guidance in ascertaining the fine distinction between a
public right and an aggregation of private rights. “Conduct does not become a public nuisance
merely because it interferes with the use and enjoyment of land by a large number of persons.”
Id. . . .
Although the state asserts that the public’s right to be free from the hazards of unabated
lead had been infringed, this contention falls far short of alleging an interference with a public
right as that term traditionally has been understood in the law of public nuisance. The state’s
allegation that defendants have interfered with the “health, safety, peace, comfort or convenience
of the residents of the [s]tate” standing alone does not constitute an allegation of interference with
a public right. . . . The term public right is reserved more appropriately for those indivisible
resources shared by the public at large, such as air, water, or public rights of way. . . . Expanding
the definition of public right based on the allegations in the complaint would be antithetical to the
common law and would lead to a widespread expansion of public nuisance law that never was
intended, as we discuss infra. In declining to adopt such a widespread expansion of the law, we
are mindful of the words of Edmund Burke that “bad laws are the worst sort of tyranny.” 1
Edmund Burke, The Works of Edmund Burke: With a Memoir 318 (1860).
. . .
The enormous leap that the state urges us to take is wholly inconsistent with the widely
recognized principle that the evolution of the common law should occur gradually, predictably,
and incrementally. Were we to hold otherwise, we would change the meaning of public right to
encompass all behavior that causes a widespread interference with the private rights of numerous
individuals.
The Illinois Supreme Court recently hypothesized on the effect of a broader recognition of
public right. In Beretta, the Illinois Supreme Court considered whether there was a public right to
be “free from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats
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