New Jersey Supreme Court Issues Definitive Public Nuisance Litigation Decision

Today, the New Jersey Supreme Court issued the definitive decision regarding the rights of public authorities to pursue public nuisance litigation against the manufacturers of lead paint and pigments, according to Houston attorney, Richard O. Faulk, Litigation Department Chair of Gardere Wynne Sewell LLP. “The majority opinion demonstrates extraordinary scholarship and wisdom by exposing a ‘new tort’ that cleverly masquerades under the ‘public nuisance’ pseudonym,” he said.

Mr. Faulk further comments:

“The crux of the holding is the Court’s conclusion that the conduct of the defendants, who manufactured and sold a product which was legal at the time of its distribution, is not the type of conduct that ‘creates’ a public nuisance. Instead, the nuisance is only ‘created’ when the premises become dangerous through “deterioration and poor maintenance by the purchasers.” (Slip Op. at 42.) Thus, as a matter of law, product manufacturers cannot be held responsible for damages or equitable abatement because the conduct does not ‘bear the necessary link to the current health crisis.’ (Id. at 41.)

“As the Court wisely recognizes: ‘Fundamental to this aspect of our analysis is the fact that we here address an ordinary, unregulated consumer product that defendants sold in the ordinary course of commerce. In public nuisance terms then, were we to conclude that plaintiffs have stated a claim, we would necessarily be concluding that the conduct of merely offering an everyday household product for sale can suffice for the purpose of interfering with a common right as we understand it. Such an interpretation would far exceed any cognizable cause of action.’ (Slip Op. at 44.) This reasoning eliminates any rational distinction between the New Jersey decision and the scenario in Rhode Island. Public nuisance law, both traditionally and under the New Jersey and Rhode Island statutes and regulations, does not focus upon the conduct of third parties, but rather the conduct of the property owner in creating the nuisance. Such a requirement ‘is in careful accord with the historical meaning of the tort.’ (Id. at 43.)

“The Court also demonstrates a clear understanding of the limits of the judiciary and their duties to respect and defer to legislative prerogatives. In New Jersey, as in Rhode Island and many other states, the legislature and regulatory authorities have allocated the primary responsibility for detecting and preventing lead risks to property owners. In Rhode Island, the trial court flatly ignored the impact of these mandates from other branches of government, holding that they were irrelevant to the ‘common law’ remedy sought by the State. In New Jersey, however, the Supreme Court paid careful attention to the legislative mandates and properly recognized that their requirements were essential considerations in evaluating the scope and meaning of the remedy being pursued.

“Such a decision is jurisprudence at its finest – a thought process that inclusively evaluates the involvement of all branches of government in an issue, which reconciles their stated purposes, and which reflects their complimentary relationships. Although the ‘common law’ may have its sources solely within the judiciary, the people have increasingly imposed policies that regulate its discretion. These began as early as the Magna Carta and have proceeded through the industrial revolution to mature into today’s complex legislative and regulatory environment. The impact of these mandates cannot be ignored, as they were in Rhode Island, merely because a court is faced with a ‘common law’ cause of action. Instead, they are a part of the overall legal fabric our society has woven – a fabric that can only be appreciated when viewed as a completed tapestry.

“Although the New Jersey decision may not end the efforts by public authorities and their private contingent fee counsel to distort public nuisance claims in other forums, it clearly unmasks those schemes and exposes them as efforts to pursue unprecedented relief at odds with both the common law and public policies declared by the people’s representatives. Hopefully, the extraordinary insight of the New Jersey jurists is as persuasive as their wisdom.”

Gardere Wynne Sewell LLP, an AmLaw 200 firm, was founded in 1909 and is one of the Southwest’s largest full-service law firms. With offices in Austin, Dallas, Houston and Mexico City, Gardere provides legal services to private and public companies and individuals in areas of energy, litigation, corporate, tax, environmental, labor and employment, intellectual property and financial services.

Gardere Wynne Sewell LLP
1000 Louisiana Suite 3400
Houston TX 77002
713-276-5500
Press Contact: Rhonda Reddick, Androvett Legal Media, 800-559-4534

This release was published on openPR.