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

Witt & Tani, TCPI 9. Liability without Fault?
of danger to person and property, caused by the presence of illegal weapons in the city of
Chicago.” Beretta U.S.A. Corp., 290 Ill. Dec. 525, 821 N.E.2d at 1114. In concluding that there
was not, the court acknowledged the far-reaching effects of a decision otherwise. Id. 290 Ill. Dec.
525, 821 N.E.2d at 1116. The court speculated that
“[i]f there is public right to be free from the threat that others may use a lawful
product to break the law, that right would include the right to drive upon the
highways, free from the risk of injury posed by drunk drivers. This public right to
safe passage on the highways would provide the basis for public nuisance claims
against brewers and distillers, distributing companies, and proprietors of bars,
taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said
to contribute to an interference with the public right.” Id.
In taking the analogy a step further, the court considered the effect of other product
misuse, stating:
“Similarly, cell phones, DVD players, and other lawful products may be misused
by drivers, creating a risk of harm to others. In an increasing number of
jurisdictions, state legislatures have acted to ban the use of these otherwise legal
products while driving. A public right to be free from the threat that other drivers
may defy these laws would permit nuisance liability to be imposed on an endless
list of manufacturers, distributors, and retailers of manufactured products that are
intended to be, or are likely to be, used by drivers, distracting them and causing
injury to others.” Id.
Like the Beretta court, we see no reason to depart from the long-standing principle that a
public right is a right of the public to shared resources such as air, water, or public rights of way.
Even had the state adequately alleged an interference with a right common to the general
public, which we conclude it did not, the state’s complaint also fails to allege any facts that would
support a conclusion that defendants were in control of the lead pigment at the time it harmed
Rhode Island’s children.
The state filed suit against defendants in their capacity “either as the manufacturer of . . .
lead pigment . . . or as the successors in interest to such manufacturers” for “the cumulative
presence of lead pigment in paints and coatings in or on buildings throughout the [s]tate of Rhode
Island.” For the alleged public nuisance to be actionable, the state would have had to assert that
defendants not only manufactured the lead pigment but also controlled that pigment at the time it
caused injury to children in Rhode Island—and there is no allegation of such control.
The New Jersey Supreme Court applied these same elements to the lead paint litigation in
that jurisdiction and likewise held that public nuisance was an improper cause of action. The
court emphasized that were it “to permit these complaints to proceed, [it] would stretch the
concept of public nuisance far beyond recognition and would create a new and entirely unbounded
tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.”
In re Lead Paint Litigation, 924 A.2d at 494. We agree.
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