FindLaw | Legal News & Information

Calif. Appeals Court Reinstates Claims in Lead-Paint Lawsuit

Several San Francisco Bay-area cities, counties and agencies can continue with their lawsuit against former makers of lead-based paint now that a California appeals panel has found that the trial court erred when it dismissed public nuisance, strict liability, negligence and fraud claims against the companies.

The former paint makers also had another setback Feb. 22, when a Rhode Island jury found many of the same companies liable for creating a public nuisance by making lead paint.

The city, county, housing authority and school district of San Francisco and the city, school district, housing authority and redevelopment authority of Oakland, as well as Santa Clara County, filed suit against Atlantic Richfield Co., Lead Industries Associations Inc., American Cyanamid Co., DuPont Co., O'Brien Corp., Glidden Co., NL Industries Inc., SCM Chemicals and Sherwin-Williams Co., claiming strict product liability, nuisance and other counts.

The complaint, filed in Santa Clara County Superior Court, argued that the defendants engaged in a concerted campaign against government regulations by opposing warnings, attacking the credibility of public health workers and using public relations campaigns to mislead consumers.

The complaint alleged that each of the class plaintiffs has been directly injured and incurred expenses as a result of the paint manufacturers' wrongful conduct. Their costs included education and community outreach; environmental testing; treatment of children with high levels of lead in their blood; inspection and testing of property for the presence of lead; hiring and training staff; and abatement, removal and remediation of lead.

Lead has been banned from paint since 1978. At high levels, lead can cause kidney damage, seizures, comas and death.

After the trial court dismissed the plaintiffs' claims of public nuisance, strict liability, negligence and fraud, they appealed to the California 6th District Court of Appeal.

The appeals panel found that the lower court erred in dismissing the plaintiffs' claims.

"A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition," the appeals panel said.

The defendants' liability is based on their affirmative promotion of lead paint for interior use, not merely the manufacture and distribution of lead paint, the panel said.

As for the claims of negligence and strict liability, the court said, "Economic loss alone, without physical injury, does not amount to the type of damage that will cause a negligence or strict liability cause of action to prevail."

The appeals panel said that even though the plaintiffs failed to plead the existence of any physical injury to their buildings, the trial court was wrong to grant the defendants summary judgment. The trial court should have allowed the plaintiffs to rectify their error.

The fraud claim should be reinstated, the appeals panel said, because the defendants concealed evidence that low levels of lead exposure could be hazardous. The claim was not barred by the state's three-year limitations period because the plaintiffs were not aware of the dangers of low-level lead exposure until scientific studies were published in 1998.

Since the complaint was filed in 2000, the plaintiffs filed their action within the three-year window, the appeals panel said. Therefore, their claims were not barred. The case was remanded for further proceedings.