The Senate Environment Committee considered S697, legislation that would dramatically expand public nuisance doctrine this week. After considering testimony from NJCJI and other friends from the business community, the Committee declined to vote to release the legislation.
For the second time in less than a year, the legislation sponsored by Senator Ruiz was again considered in Senate Environment. As we explained in oral and written testimony, we appreciate the desire to mitigate the harm of lead paint, but Senate Bill 697 violates 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.
As the New Jersey Supreme Court explained in its decision, these constraints on public nuisance claims are not arbitrary. The doctrine exists for the specific purpose of addressing damage to property that belongs to the public, so that private persons lack the incentive or capacity to correct – giving the State the opportunity to step in to eliminate those generally applicable injuries, and allowing those private individuals uniquely affected to sue for compensation for special injury.
The Court emphasized the changes that would be accomplished by this legislation would “stretch the concept of public nuisance far beyond recognition and create new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.”
NJCJI will continue to oppose legislative efforts to dismantle longstanding constraints on public nuisance litigation. Opening the door to such litigation in any context risks setting dangerous precedent for many different industries operating in New Jersey and across the country. Please contact Alida Kass if you would like to discuss such efforts further.