NJ Supreme Court Ruling Favoring Defendants - The Reasoning

In In Re Lead Paint Litigation (Docket A-73-05), the key issue was public nuisance. The plaintiff's contentions are essentially articulated in this Amicus Curiae brief submitted by the Public Advocate of New Jersey http://www.state.nj.us/publicadvocate/reports/pdfs/Lead_Paint_Amicus_Brief_Final_4_20_06.pdf

In the ruling, Justice J. Hoens said:

"Plaintiffs cannot state a cognizable claim consistent with the well-recognized parameters of the common-law tort of public nuisance.  To find otherwise would be directly contrary to legislative pronouncements governing both lead paint abatement programs and product liability claims."

Justice Hoens provided this reasoning.

1. Lead is a naturally occurring metal that the Centers for Disease Control considered a major environmental problem when children are exposed to it.

2. Congress passed and continued to amend legislation to prevent and address this problem. In NJ through the LPA and other statues, the Legislature has separated the statutory scheme for the abatement of lead paint in buildings from the programs devoted to the health care aspects. Under the LPA, responsibility for the costs of abatement rests largely on the property owner, with the statue specifically empowering local boards of health to sue owners to recover abatement costs. 

3.  The Legislature's use of the term "public nuisance" in the LPA is in keeping with the term's historic meaning and intent.

4. In the area of public nuisance, there is a distinction between suits for money damages and proceedings for the injunctive remedy of abatement.

5. The Legislature's use of the term "public nuisance" can only have been intended in its strict historical sense.

6. There is no basis for recognizing a public nuisance cause of action in plaintiffs' complaints.

7. In applying these above referenced principles to the plaintiffs' complaints, the inevitable conclusion is that the complaints do not state a claim in public nuisance.

Copy of the unofficial 71-page opinion available free from Mgenova981@aol.com.