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

Witt & Tani, TCPI 9. Liability without Fault?
The judgment is reversed. The superior court is directed to (1) vacate its order sustaining
the demurrer to the representative public nuisance cause of action in the third amended complaint
and enter a new order overruling the demurrer to that cause of action. . . . Plaintiffs shall recover
their costs on appeal.
Note
1. In December 2013, a California trial court awarded damages to the plaintiffs in the
amount of $1.1 billion, later increased to $1.5 billion. An intermediate California appellate court
affirmed most of the judgment in November 2017. People v. Conagra Grocery Products Co., 17
Cal. App. 5th 51 (Cal. App. 6th Dist. 2017). The California Supreme Court declined to review the
case in February 2018. In October 2018, the U.S. Supreme Court denied certiorari, putting an end
to nearly two decades of litigation and leaving in place the damages award, including a $409
million abatement fund. ConAgra Grocery Prod. Co. v. California, 139 S. Ct. 377 (2018); see
also Greg Stohr, Supreme Court Rejects Lead-Paint Maker Appeals in $400 Million Case,
BLOOMBERG, Oct. 15, 2018.
Few other efforts to deploy the public nuisance doctrine for broad social policy ends have
had as much success as the California lead paint case. The next case, arising out of a creative
effort to deploy public nuisance in New Jersey, is more typical of the outcomes of such cases.
Camden County v. Beretta, 273 F.3d 536 (3d Cir. 2001)
PER CURIAM.
The Camden County Board of Chosen Freeholders (hereinafter “Camden County”)
contends that handgun manufacturers, because of their marketing and distribution policies and
practices, are liable under a public nuisance theory for the governmental costs associated with the
criminal use of handguns in Camden County. The District Court, in a 53-page opinion, dismissed
the complaint. . . . We affirm the order of the District Court.
I
In its Second Amended Complaint, Camden County alleged that Defendants’ conduct—
the marketing and distribution of handguns—created and contributed to the widespread criminal
use of handguns in the County. . . . The County invoked three theories of liability: negligence,
negligent entrustment, and public nuisance. The County requested several forms of relief,
including compensation for the additional costs incurred by the County to abate the alleged public
nuisance (costs borne by the County’s prosecutor, sheriff, medical examiner, park police,
correctional facility, and courts) . . . and other compensatory and punitive damages. The
manufacturers countered that the County had failed to state claims on which relief could be
granted and that, in any event, damages were barred by the municipal cost recovery rule.
Moreover, the manufacturers contended that the claims were barred by New Jersey’s product
liability statute, the Dormant Commerce Clause, and the Due Process Clause.
530