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Darin Schanker
Darin Schanker
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Rhode Island Reverses Lead Paint Verdict

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On Tuesday, the Rhode Island Supreme Court reversed a historic verdict against three former paint manufacturers , whose lead-based paint was deemed a public nuisance by a jury in 2006. The three companies, Sherwin-Williams Co., NL Industries, Inc., and Millennium Holdings LLC, would have been forced to pay as much as $2.4 billion to hundreds and hundred of thousands of homes contaminated by the paint, whose lead can, at high levels of exposure, cause “ mental retardation, kidney problems, seizures, coma, and death. Low levels of lead can cause behavior problems, learning disabilities, and diminished intelligence.”

The 4-0 opinion, states that the defendants’ motion to dismiss made early in the litigation, should have been granted because,

“the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.” Furthermore, the court pointed to the Rhode Island General Assembly’s recognition of this lack of control on the defendants’ part by placing “the burden on landlords and property owners to make their properties “lead safe.”

The justices recognize the danger of lead-based paint, the damages it causes to those exposed, especially children, and the fact that “childhood lead poisoning is completely preventable.” However, the court also rightly recognized that its power to act was limited by the law, and the law of public nuisance consists of three elements: causing 1) an unreasonable interference; 2) with a right common to the general public; 3) by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred.

And the state did not establish those elements. It didn’t allege that the defendants interfered with a public right, defined as “indivisible resources shared by the public at large,” or that the defendants had control over the lead pigment when it caused harm to children. The public nuisance claim just didn’t fit with the facts of the case.

While this result, removing a remedy for those were exposed or could be exposed to harmful lead-based paint, seems distasteful according to many of the reactions from the public , the Rhode Island Supreme Court, by joining appellate courts in Illinois, Missouri and New Jersey in rejecting the legally dubious public nuisance claim, made the correct legal decision. But was is the right moral decision?

Thomas Connell

Summer Intern 2008

J.D. Candidate 2010

University of Colorado