Lead waits

If children are still dying from poisoning caused by exposure to lead paint, and if homeowners, landlords and public agencies are still paying millions of dollars for lead paint abatement, then lead paint manufacturers are still responsible for damages — despite the statute of limitations written into product liability laws.

Such was the stance of both a Rhode Island trial court and the California Court of Appeals in two rulings this year against groups of lead paint manufacturers (Sherwin Williams et al. and Atlantic Richfield et al., respectively). What makes these cases unique is the invocation of public nuisance laws as opposed to product liability laws. Though it may seem like a minor legal technicality, the implications are profound.

The parameters of product liability, a part of tort law, force plaintiffs to prove the guilt of the defendant; prove the extent and uniqueness of their suffering; prove harm was caused by a faulty product (not misuse of the product) — and do it all within a certain timeframe. But public nuisance law, as applied to products, relaxes the parameters and nixes the timeframe.

Some consumer advocates hope to use the precedents set in the Rhode Island and California cases to bring other public nuisance lawsuits against known polluters, gun manufacturers and other corporate giants.

Corporations and their lawyers, meanwhile, are concerned the ruling will flood the courts with an endless barrage of nuisance cases, provide an end-run around pre-existing product liability and state laws, unreasonably raise the cost of doing business, and hamper efforts to bring new products to market.

Getting the lead out
Lead paint was commonly used in American homes between 1925 and 1960. Research into the health problems caused by the paint was conducted in the late 1950s and early 1960s, and its use in homes was banned entirely by 1978.