Catherine M. Sharkey (New York University School of Law) has posted Public Health and Safety Nuisances Per Se (New York University Law Review, forthcoming) on SSRN. Here is the abstract:
The law of public nuisance raises two fundamental questions: (1) What is a public right (or “right common to the general public”)?; and (2) Who can bring enforcement actions based on violations of such a public right? City and County of San Francisco v. Purdue Pharma, the largest civil action in United States history, tackles these questions in an especially fraught context—namely, whether public nuisance claims should be recognized when cities, states, and public entities sue opioid manufacturers, distributors, and retailers for marketing, advertising, and sales practices that fueled the enduring opioid abuse public health crisis.
So far unexplored, albeit hinted at in City and County of San Francisco, is the possible connection between negligence per se and public nuisance. The explicit reliance on the relevant standard of care—a public statutory or regulatory standard—in a private negligence per se tort action provides a jumping-off point for exploring the hybrid private/public nature of the violation of a public right in the context of the public nuisance tort. Examining this conception and tracing its historical roots in the common law and statutory public nuisance actions, this Article proposes a novel conception of a discrete subcategory of public nuisances: public health and safety nuisances per se, based upon the repeated violations of public health and safety statutes and regulations. Violations of public health and safety statutes and regulations can help define (and limit) the scope of the public right protected by the public nuisance tort. Thus, the contours of the public statute or regulation define the contours of the public right.
Having set forth a conception of public right that encompasses public health and safety, we turn to the second key question raised by public nuisance: Who can enforce the violations of such a right? The public health and safety nuisance per se action could be pursued by a private individual (or entity) who has suffered a “special injury,” or alternatively by the state or other public entity. Private public nuisance actions, which date back to the sixteenth century, are the most tort-like. But public public nuisance actions may likewise be warranted, notwithstanding the state’s ability to abate public nuisances via administrative action. Just as we have negligence per se actions, including in highly regulated fields such as medical devices, so can public health and safety nuisances per se play a necessary regulatory enforcement role.
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