Lead Paint Lawsuit is a Bad Idea
Last week, Columbus followed the lead of three other Ohio cities – East Cleveland, Lancaster and Toledo – in filing a public nuisance lawsuit against paint manufacturers. The lawsuit, filed with the assistance of several private personal injury lawyers, seeks money damages and to force paint companies to remove or otherwise clean up lead paint on buildings. Since the lawsuit seeks to impose liability in a manner inconsistent with traditional legal standards and sends the wrong message to manufacturers doing business in Ohio, Columbus should drop the litigation immediately.
In recent years, states and cities have turned to public nuisance lawsuits as a method to punish unpopular businesses or industries and, in the process, line government coffers and trial lawyers’ pockets with millions of dollars. The most successful attempt at such government-sponsored litigation was the lawsuit filed by forty-six states against the manufacturers of tobacco products. Ultimately, the tobacco companies agreed to transfer $246 billion to the states, with private lawyers who contracted with the state attorneys general to assist in the litigation taking a healthy chunk of the settlement.
Generally, however, cities have been unsuccessful in bringing public nuisance lawsuits against product manufacturers. Across the country, courts have dismissed public nuisance lawsuits against firearm manufacturers for costs related to gun violence and against manufacturers of products containing asbestos to recover costs of removing asbestos from buildings. Except for a recent case in Rhode Island, litigation against paint manufacturers has similarly been unsuccessful. Of course, individuals injured by defective products can still sue product manufacturers directly to recover for their injuries.
Public nuisance is a relatively obscure and narrow legal theory that permits a government entity to take action to stop or abate the impact of specific unreasonable behavior that causes injury to a public right. For example, under the public nuisance theory, a city may take action to stop someone from blasting their radio when people are picnicking in a public park or to force responsible parties to abate the damage caused by their dumping of sewage into a public river. Public nuisance law, however, has little applicability in the lead paint context.
Lead paint is only dangerous when it peels or flakes, releasing a fine dust that when ingested can cause lead poisoning. Accordingly, proper maintenance of older buildings over the last three decades, including a fresh coat of non-lead paint, would have dramatically reduced the threat of lead poisoning. Most paint companies, including the Ohio-based Sherwin-Williams Company, which is one of the companies named in Columbus’ lawsuit, stopped selling lead-based paints long before the federal government banned its use in 1978.
Misusing public nuisance law as a means to shake down paint companies for selling, what was at the time, a legal product more than forty years ago, ignores the traditional legal standards for liability, including proving that a product defect caused a specific harm. Such litigation also disregards the negligence of owners who failed to maintain their properties in a reasonable fashion, especially in light of the well-known threat caused by allowing buildings with lead paint to deteriorate.
Because of the unreasonableness of misusing public nuisance law in this fashion, the General Assembly recently passed legislation that would effectively prohibit cities from filing such lawsuits against paint manufacturers. Columbus filed its lawsuit in advance of the effective date should Governor Bob Taft sign the bill into law.
Over the last three decades, the rate of lead poisoning in children has been reduced dramatically. While that drop is partly the result of the elimination of lead paint use, it is primarily due to government-mandated reductions in acceptable levels of lead in gasoline and drinking water. Responsible regulation, not litigation, has reduced the threat of lead poisoning.
At a time when Ohio is struggling to maintain its manufacturing base, deliberately misusing legal theories like the public nuisance doctrine in order to impose liability on manufacturers is the wrong prescription for improved economic growth.
Instead of litigation, Columbus should follow the lead of other cities and states that engage in aggressive public education campaigns regarding lead paint and provide incentives and enforcement to get landlords and owners to properly maintain their buildings.
David J. Owsiany is the senior fellow in legal studies for the Buckeye Institute.
