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Class action lawyers often plead public nuisance theories as alternative counts in their products liability actions, particularly when the alleged injury arises from misuse of an otherwise nondefective product, such as handguns. Courts have been reluctant to allow such public nuisance theories to proceed. Four recent state court decisions in firearms litigation provide examples of the ways in which courts have sought to prevent having the public nuisance theory supplant ordinary causes of action in products liability litigation. The term “nuisance” refers to the type of interest invaded rather than the type of conduct that subjects the actor to liability. Restatement (Second) of Torts � 822 cmt. b. There are two types of interests-private and public-that, when invaded, can give rise to a cause of action for nuisance. The classic case of a private nuisance is interference with the use and enjoyment of private property. In contrast, a public nuisance involves an “unreasonable interference with a right common to the general public,” such as the use and enjoyment of a public space or roadway. Restatement (Second) of Torts � 821B. Factors for establishing public nuisance This formulation of what constitutes a public nuisance has prompted creative lawyers to urge that when pleading public nuisance, they need not plead many of the elements that are required in other torts. But most courts have taken a restrictive view of public nuisance theory, holding that to state a claim for public nuisance, a plaintiff must establish standing based on a special injury; the existence of a public right; that the defendant unreasonably interfered with that public right; that the defendant committed an underlying tortious act; and that this act proximately caused injury. Some of these restrictions are statutory; in most other instances, they are judicially imposed. The standing requirement typically is statutory. For example, in California, “[a] private person may maintain an action for public nuisance, if it is specially injurious to himself, but not otherwise.” Calif. Civ. Code � 3493. The Restatement, too, proceeds from the presumption that public officials-rather than private individuals-should be the only parties with standing to bring a public nuisance claim to enforce rights common to all of the public. See Restatement (Second) at � 821C. This presumption limits the public nuisance actions that may be brought by private individuals. The question of whether the plaintiff has identified a true “public right” that could give rise to a public nuisance should not be treated perfunctorily. The Restatement instructs that the “public right” is collective in nature and must be common to all members of the public. It is “not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.” Restatement (Second) at � 821B cmt. g. A simple individual injury, then, does not automatically confer standing to bring a public nuisance claim. The Illinois Supreme Court recently considered the question in two firearm cases-one brought by municipalities, and another brought by survivors of victims of gun violence. See City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004), reh’g denied (Jan. 24, 2005); and Young v. Bryco Arms, 821 N.E.2d 1078 (Ill. 2004). There the plaintiffs asserted that the defendants’ design, marketing, distribution and sales of guns that appeal to criminals interfered with the public’s right “to use the public spaces of the City of Chicago without undue risk of injury to themselves and to their families.” Young, id. at 1083. In Young, the court cautioned that “if every sort of conduct that caused . . . the reasonable apprehension of danger to person or property were considered a nuisance, the law of nuisance would swallow the entire law of torts and most of the criminal law.” Id. at 1084. But see City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2001) (relying on the lower-court decision reversed in Young). And in City of Chicago, the court went even further, observing that there was no authority for the “unprecedented expansion of the concept of public rights to encompass the right asserted by plaintiffs.” 821 N.E.2d at 1116. Indeed, the court was “reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cellphone, or some other instrumentality) in a manner that may create a risk of harm to another.” Id.; but see City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1231 (Ind. 2003) (defining a “public right” more broadly). The District of Columbia Court of Appeals also recently confronted a public nuisance claim in a firearms suit, affirming dismissal of the public nuisance claim. See District of Columbia v. Beretta U.S.A. Corp., nos. 03-CV-24, 03-CV-38, 2005 WL 949137 (D.C. April 21, 2005). In that suit, the court refused “to loosen the tort [of public nuisance] from the traditional moorings of duty, proximate causation, foreseeability, and remoteness” that the court had relied upon in rejecting the plaintiffs’ negligence claims. Id. at 9. The plaintiffs had argued that the defendants distributed their firearms without adequate self regulation, knowing and intending that such sales would create an unlawful flow of firearms into the District of Columbia. They also alleged that there were many measures the defendants could have adopted to impede the unlawful flow of firearms into the district, and that the defendants’ failure to do so unreasonably interfered with district residents’ health and safety. Analyzing public nuisance cases from many other states, the court rejected an interpretation of public nuisance that would strip it of the traditional tort concepts of duty, foreseeability and proximate cause, which act as limitations on unbounded liability. The court clearly viewed imposing these traditional tort requirements as exercising judicial restraint: “[W]e are doubly unpersuaded of the necessity or wisdom of adopting judicially a right of action for public nuisance applied to the manufacture and sale of guns generally, where an effect may be a proliferation of lawsuits ‘not merely against these defendants . . . but . . . against . . . other types of commercial enterprises’-manufacturers, say, of liquor, anti-depressants, SUVs, or violent video games-’in order to address a myriad of societal problems . . . regardless of the distance between the “causes” of the “problems” and their alleged consequences.’ ” 2005 WL 949137, at 14 (citation omitted). The California Court of Appeal also recently grappled with similar concepts in a firearms suit. See In re Firearm Cases, 24 Cal. Rptr. 3d 659 (Calif. Ct. App. 1st Dist. 2005). Its opinion reflects a real understanding of the judicial branch’s limitations in solving social problems, and exhibits deference to the elected legislative and executive branches on questions of public policy. In Firearm Cases, the plaintiff municipalities urged that they did not have to establish ordinary tort elements to plead a public nuisance. The state intermediate court, however, held that the “language of the Restatement presumes that the necessary elements for proof of a cause of action for public nuisance include the existence of a duty and causation.” Id. at 679. In reaching its decision, the court analyzed a controversial 9th U.S. Circuit Court of Appeals decision that had reinstated the public nuisance claims of individual victims of gun violence based on the 9th Circuit’s prediction of what the California Supreme Court would hold. See Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir. 2003). But even in Ileto, the federal court had imposed strict causation requirements, allowing claims to proceed only against the manufacturers of guns that actually had been fired and actually had injured the plaintiffs’ decedents. The Ileto court had dismissed the nuisance claims against the rest of the industry whose guns were not used in the homicide. Reluctance to call regulated activity a nuisance As the Firearm Cases court noted, both the Restatement and the common law reflect a reluctance to declare an activity to be a public nuisance when it is subject to extensive regulations or statutes. See Restatement (Second) at � 821B cmt. f. As the court explained, “Establishing public policy is primarily a legislative function and not a judicial function, especially in an area that is subject to heavy regulation.” 24 Cal. Rptr. 3d at 678. This was the same reasoning that had led the Illinois Supreme Court late last year to defer to the legislature on firearm regulation. See Young, 821 N.E.2d at 1091. The Firearm Cases court also quoted and adopted the public policy rationale of the eight judges who dissented from the denial of rehearing en banc in Ileto: “‘In effect, [imposing novel public nuisance theories on lawful products] is a form of regulation administered through the courts rather than the state’s regulatory agencies. It is, moreover, a peculiarly blunt and capricious method of regulation, depending as it does on the vicissitudes of the legal system, which make results highly unpredictable in probability and magnitude. Courts should therefore be chary of adopting broad new theories of liability, lest they undermine the democratic process through which the people normally decide whether, and to what degree, activities should be fostered or discouraged within the state.’ ” Firearm Cases, 24 Cal. Rptr. 3d at 682 (citation omitted). The recent decisions discussed above highlight the rigorous analysis courts give public nuisance claims in products liability cases, particularly when the harm is alleged to arise through misuse of an otherwise lawful, nondefective product. Particularly when the product is a regulated one, courts are increasingly reluctant to undertake judicial regulation of the product using nuisance theory. J. Russell Jackson is a partner in the complex mass torts and insurance litigation group of New York’s Skadden, Arps, Slate, Meagher & Flom.

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