Today, another brief making its way to the Rhode Island Supreme Court regarding RI Lead Paint Public Nuisance II was an amicus one from the National Paint & Coatings Association, Inc. [NPCA].
It was filed on behalf of the defendants NL Industries, Millennium Holdings and Sherwin-Williams. The 45-page document argues that the trial court allegedly misread and therefore misapplied Wood v. Picillo. NPCA is a voluntary, nonprofit trade association representing some 300 manufacturers of paints, coatings, adhesives, sealants and caulks, raw materials suppliers to the industry, and product distributors.
In its brief, NPCA contends that the Superior Court relied on Wood v. Picillo, a hazardous waste storage case, to misinstruct the jury to find liability that would be predicated merely on the "nature of the injury" [e.g. dangerous lead exposure) and thus the state would not have to prove any "conduct causation" by the defendant ancient lead pigment producers.
To the contrary, argues the NPCA, Wood involved ultra-hazardous activity. That included 50-foot flames from chemical explosions, "sink holes emitting chemical odors opened in the earth" and groundwater contamination. Given this ultra-hazardous activity, the condition clearly constituted "unreasonable interference with a right common to the general public."
The brief goes on to say that, as the Rhode Island Supreme Court has explained in Selwyn v. Ward , "strict liability attaches when a plaintiff's injuries are proximately caused by some ultra-hazardous or abnormally dangerous material." And in Splendorio v. Billray Demolition Co.  it was noted that "If the rule were otherwise, virtually any commercial activity involving substances which are dangerous in the abstract automatically would be deemed as abnormally dangerous. The results would be intolerable."
In essence, declares the NPCA, the trial court ignored the requirements that a public nuisance involves a public right, like the situation in the hazardous waste sit and other Rhode Island pollution cases; and that the defendants conduct be shown to be an intentional and unreasonable interference with that public right [e.g. to public health and safety], in a cause of action involving individual dwellings, which does not constitute a public nuisance. The result, as the Rhode Island Supreme Court has previously declared, is "intolerable."
Those wanting to read this interesting line of argument can obtain the brief from me at no charge Mgenova981@aol.com.