On Monday October 19, 2020 the Senate Environment Committee will again hear Senate Bill 697, sponsored by Senator Teresa Ruiz (D-Essex), legislation that would dramatically expand public nuisance doctrine.

While acknowledging the sponsor’s desire to mitigate the harm of lead paint, NJCJI testified in opposition to the legislation last month since it establishes a dangerous precedent by violating basic tenets of public nuisance doctrine under the common law in three distinct ways:

• As explained by the New Jersey Supreme Court in In re Lead Paint Litigation, a public nuisance by definition is limited to conduct “performed in a location within the actor’s control, which has an adverse effect on a common right.” None of the locations currently afflicted with deteriorating lead paint are under the control of paint manufacturers, nor does a hazardous condition in interior residential space affect a “common right.”
• Second, monetary damages for a public nuisance are specifically limited to “a private party who has suffered a special injury” – in other words, an injury of a kind different from that suffered by other members of the public. This legislation expressly eliminates the requirement of a special injury.
• Third, the public entity which proceeds “against the one in control of the nuisance may only seek to abate, at the expense of the one in control of the nuisance.” But because the legislation targets the manufacturers who produced lead paint several decades earlier and have no control over any existing nuisance, the historic limitation on public authorities to seek only abatement is also discarded.

NJCJI will again testify in opposition to the legislation. If you wish to discuss this in greater detail contact Eric DeGesero at edegesero@edgeconsultingnj.com or 973-464-9504.