Fresh from its victory in a Rhode Island suit against lead paint makers, plaintiffs' powerhouse Motley Rice is prepping for a similar battle in New Jersey's Supreme Court.
On Feb. 24, the firm handed the paint industry its first defeat in scores of lead contamination suits over two decades by showing that peeling paint is a public nuisance: an inherently hazardous condition that can be expected to attract children to touch and possibly ingest.
The New Jersey case has the rapt attention of defense attorneys, who fear that adoption of the doctrine here would ease the way for untold numbers of suits. The public nuisance doctrine worked where conventional product liability approaches had failed, as it required no showing of culpability by the defendants.
In 1999, Rhode Island's attorney general, on behalf of state residents, sued five companies that produced the lead additive used in paint pigment before it was banned in 1978. The suit originally included counts of unfair trade practices, negligence, strict liability and civil conspiracy, but all counts were dismissed other than the claim that the presence of lead paint in public and private buildings is a public nuisance.
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