In a landmark lead paint liability case, the Superior Court of California has held three of five paint companies liable for public nuisance. The court ordered them to clean up lead paint in California residences painted before 1978, at a total cost of $1.15 billion.
The use of lead in interior residential paint was permitted until after 1978, i.e. the manufacture and sale of lead paint was legal when these homes were painted. See People v. Atlantic Richfield Company, et al. Superior Court of California, County of Santa Clara, Case No. 1-00-CV-788657. The court concluded that lead paint in older homes is a public nuisance today, because it still poses a serious health risk to thousands of children in tens of thousands of homes.
Three of the paint companies did much more than merely manufacture a legal, if risky, product, back in the 1960s and 1970s. They actively promoted the use of lead paint for interior use, knowing it was hazardous to children.
As one of the paint company’s internal publications stated over 100 years ago, in 1900, “It is also familiarly known that white lead is a deadly cumulative poison, while zinc white is innocuous. It is true, therefore, that any paint is poisonous in proportion to the percentage of lead contained in it.” This is the distinguishing, “far more egregious” factor that justifies retrospective cleanup liability, unlike a conventional product liability/negligence case.
Could such a decision happen here? It would be much harder, but it is possible, especially now that the California plaintiffs have dug out all the evidence… The decision can be found here.