The court’s discussion of the nuisance claim leaves a great deal unsettled, as the court seems to take away with one hand what it gives with another.
The court states that creation of a nuisance has two elements: "a plaintiff must prove that the defendant’s conduct was a substantial cause of the existence of a public nuisance and that the nuisance was a substantial factor in causing injury to the public, which injury is the subject of the action."
Noticably absent is any element as to intent or knowledge. The court eliminated the actual or constructive knowledge element required in an action for maintenance of a nuisance, but replaced it with nothing comparably relevant for creating a public nuisance. All that is apparently necessary to prove is that Mautz sold enough of the lead paint to substantially cause the public nuisance, and that the nuisance was a substantial cause of injury.
However, later in the decision, the court refers to evidence establishing that Mautz promoted the sale of lead paint, right up until the ban went into effect in 1973, and held, "Evidence that Mautz and NL Industries each promoted the use of lead paint directly to the public and through sales staffs creates a genuine issue of material fact for the jury on the question of whether defendants knowingly participated in the creation of a public nuisance of childhood lead poisoning in the City of Milwaukee (emphasis added).
This statement appears to suggest that, for the City to prevail, it must prove an additional element that Mautz knew lead paint was dangerous, and sold it anyway.
If that is the case, then the City’s claim is undermined, even if it can meet that element. Lead paint was used for decades, presumably without knowledge that it was dangerous. Over time, its dangers became known. If Mautz can only be held liable for public nuisance based on sales made in the waning months of 1972, after the ban was enacted, but prior to its going into effect, the City may have difficulty proving that the "knowing" conduct during that relatively short period, was a substantial cause of the nuisance, rather than only a negligible one, even assuming that the sale of lead paint over a course of decades clearly did substantially cause a public nuisance.
Another problem the City faces is that, ultimately, even if it does obtain a favorable verdict in a jury trial, it must still face the public policy question. At least from the court’s discussion, it does not appear that Mautz did anything other than what it was legally entitled to do sell legal paint. There is no evidence cited by the court that Mautz engaged in fraud, or misled the public about scientific data indicating that lead paint was hazardous.
The ramifications of permitting a verdict to stand would be great. It could potentially make Wisconsin a magnet jurisdiction for suits against gun manufacturers, tobacco companies, breweries and distilleries, and fast food chains, merely for selling legal products.
– David Ziemer
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David Ziemer can be reached by email.