A second wind for public nuisance law? - PointofLaw.com
Walter Olson, a Senior Fellow at the Manhattan Institute Center for Legal Policy, poses the question of whether or not the advancement of North Carolina's public nuisance suit against the Tennessee Valley Authority (TVA) signals a second wind for state AGs pressing public nuisance claims in place of product liability claims. As has been witnessed in Rhode Island and, more recently, Ohio, state AGs attempting to circumvent the standard remedy of product liability by pressing public nuisance claims have found themselves well outside the scope of the public nuisance legal theory. Olson wonders whether or not North Carolina's claim will breathe new life into the public nuisance as a product liability remedy debate.
The answer is a vague "it might", some legal experts contend that, after having had their public nuisance cases slapped down one after another, plaintiffs' attorneys will continue to "stretch" the current laws and invent new ways to bring their cases to court in search of "mega payoffs". Lisa A. Rickard, President of the U.S. Chamber Institute for Legal Reform writes "All the plaintiffs’ bar really needs is a single precedent-setting victory with a public nuisance case. This means that even confronted with long-shot odds, firms like Motley Rice are willing to gamble on the outcome because the ultimate payoff would be astronomical."
These suits come at a price; the misuse of legal theory leads to a slippery slope with an end destination that is certain to be detrimental to the legal fabric of society. Rickard comments on the intended use of public nuisance law:
Public nuisance—an 800-year-old legal concept, today used to settle disputes such as neighborhood quarrels over loud rock music—is a legal standard intended to apply to unreasonable interference with public rights. In seeking to have it apply to lead paint, the plaintiffs sought to bypass well-settled notions of product liability law, such as the requirement to demonstrate that the defendant in the case actually caused the harm in question.