Old Dog, New Tricks

The concept of a public nuisance goes back to old English criminal laws making it, for example, a crime to obstruct the king’s highway. In its most traditional sense, public nuisance is a “condition, activity, or situation (such as a loud noise or foul odor) that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways.” Liability might or might not arise from the situation, and the appropriate remedy is most often to abate the cause of the nuisance. 

While each state defines public nuisance differently, an essential component is that it is an action carried out by one entity that affects the public at large, rather than an individual or small group of people, and limits their ability to use a public resource.

But in recent years, the plaintiff’s bar and activist attorneys general, city attorneys and district attorneys have discovered a new use for public nuisance—implementing public policy changes by circumventing the legislative process. They claim that legal activities and products—such as oil and gas, firearms and pharmaceuticals—have harmed society and thus become a public nuisance.

In one mind-boggling instance, the city attorney in Milwaukee is considering bringing a public nuisance lawsuit against two car manufacturers because their vehicles are, allegedly, too easy to steal. Rather than addressing the root cause of the uptick in vehicular thefts in the community, the city is blaming the manufacturer for the actions of a group of criminals.

As we’ve discussed previously, TLR is particularly interested in restoring the public nuisance doctrine to its historic domain, rather than allowing it to be a catch-all cause of action used to impose one person’s political views on society as a whole. 

There is nothing new about TLR’s interest in issues like this. A major impetus of the creation of TLR 28 years ago was to address problems being created in Texas by the then-activist Texas Supreme Court, which for years was populated mostly by former personal injury plaintiffs’ lawyers. That old, liberal court, legislating from the bench, created or expanded causes of action to produce results it deemed “just” or opportune, regardless of legal precedent or the plain words of applicable statutes. 

We have come a long way since the days of jackpot justice in Texas. We have been vigilant in guarding against their return through judicial activism. But the evolving use of the public nuisance doctrine in Texas and elsewhere proves that you can teach an old dog new tricks.