On Oct. 7, a county court in Illinois dismissed a complaint the City of Chicago filed in Sept. 2002 that asked for an injunction against eleven paint manufacturers and one local trade association.
The legal action stemmed from lead-based paint once applied to municipal and residential buildings throughout the city. Rather than arguing product liability, the city claimed that manufacturers knowingly caused a "public nuisance" when they created and distributed the older-style paints.
The city alleged that the defendants marketed products they knewor should have knownwere hazardous to residents, especially children, and asked that the defendants help fund local lead-remediation and treatment programs. In the court's ruling, Judge Nancy J. Arnold upheld the defendants' argument, saying the complaint "is in fact a disguised product liability claim" and "does not fit within the boundaries of Illinois public nuisance law."
According to the court's decision, the city failed to prove the manufacturers directly caused a public nuisance, in part because the plaintiff was not able to identify lead-based products on specific buildings. Defense attorneys say the ruling rejects the citys "improper attempt" to shift responsibility from owners to vendors. Owners, Judge Arnold said, are ultimately responsible for properly maintaining their buildings.
Private homes are the main source of the concern but the issue stretches to all types of structures with lead traces. Maria Woltjen, director of community outreach for Loyola University Chicago's ChildLaw Center, says she believes contractors should be concerned about litigation only "if they are doing work on older properties" where they could "disturb the lead paint that was placed there decades ago."
In 1972, Chicago prohibited the use of lead-based paints. The U.S. government later banned them nationwide in 1978. Last year, Chicago health officials say, more than 12,000 city children were diagnosed with lead poisoning, the abatement for which costs taxpayers more than $10 million each year. Jennifer Hoyle, spokeswoman for the Chicago's legal department, says the city is not asking paint manufacturers to bear the entire cost "but we think they should pay their fair share."
This latest dismissal has come in line with approximately 50 other unsuccessful, nationwide lead-abatement suits, the most recent of which have used public-nuisance arguments. But Chicago attorneys are not giving up yet. Says Hoyle, "We strongly disagree with [the judges] decision, and we'll be filing for an appeal."