Controlling the Lead Paint Debate: Why Control is not an Element of Public Nuisance

Abstract

This Note addresses the inconsistent approach to common law public nuisance claims that is ongoing in courts across the country. Currently, courts are divided over whether control of the instrumentality causing a nuisance is an element of a public nuisance claim against product manufacturers. This Note argues that control is not, and has never been, properly considered a separate element that a plaintiff must prove in a public nuisance case. Rather, it should be considered only a single factor in the proximate cause analysis. Thus, courts that profess to adopt common law public nuisance as reflected in the Restatement do not remain faithful to the tort when they impose the control element.