Public Nuisance – No Longer Just a Property Claim?


One of the many benefits of owning property is the right to use it as you please. A property owner’s right to use their land as they like is not unlimited, however. Nuisance laws balance property owners’ rights with the rights of adjoining neighbors and the community at large. Although nuisance laws vary, they all generally prohibit activity that unnecessarily damages or devalues the life or property of others. When property owners engage in or permit activities creating a nuisance on their property, they may be held liable for any resulting damages. Commercial property owners can be held liable for public nuisances originating from their property as well—even if the nuisance is created by someone other than the owner, such as a tenant.

What Is A Public Nuisance?

A public nuisance is an unreasonable interference with a public right. “Unreasonable interference” means that the conduct must be a significant interference with the public’s safety or health, and must adversely affect all or a considerable part of the community. Statutorily prescribed conduct may determine the reasonableness of a defendant’s conduct. Environmentalists have filed numerous suits asserting public nuisance claims against parties they alleged caused or contributed to environmental pollution. Noise pollution, or excessive noise volumes, has also been the subject of public nuisance claims.

Recently, public nuisance law has been extended to products. An Oklahoma state judge held defendants in the opioid litigation liable for $572 million under the theory of public nuisance. After determining that Oklahoma law does not limit nuisance to property claims, the Court found the defendants’ marketing practices constituted a nuisance under Oklahoma law. Specifically, the court found the companies’ conduct was a nuisance as defined under Oklahoma statute in that the companies “endangered the comfort, repose or safety of others.” The nuisance was considered public because it “affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

Seemingly recognizing the novelty of its ruling, the Oklahoma Court found, in the alternative, that in the event Oklahoma’s nuisance law does require the use of property, the State has sufficiently shown Defendants pervasively, systemically, and substantially used real and personal property, private and public, as well as the public roads, buildings, and land of the State of Oklahoma, to create this nuisance.   For example, the defendants’ sales representatives were trained in their Oklahoma homes and performed their sales duties in doctors’ offices, hospitals, and restaurants.

After finding a public nuisance, the Court concluded the appropriate remedy is abatement of the nuisance. The prosecution for State of Oklahoma proposed a multifaceted “Abatement Plan” that the Court approved.   Drawing upon best practices from the Surgeon General, the CDC, John Hopkins, and the White House, among others, this plan included funding for opioid addiction treatment facilities, supplementary services for victims, as well as funds for enforcement and regulation. The Court found the cost of the “Abatement Plan” to be $572,102,128.00 and awarded this amount to the plaintiffs along with their attorneys’ fees.

The defenses to public nuisance claims can vary significantly by jurisdiction, as well as what type of public nuisance the property owner or company is allegedly creating.   Given the success of the Oklahoma verdict related to conduct associated with a product, we can expect to see similar claims spanning different industries.

Texas Civil Defense Lawyers

Companies should seek the counsel of experienced attorneys who understand the complex legal issues in this constantly evolving industry. With offices across Texas, MehaffyWeber covers every aspect of the premises, products, and the energy industry. Our experience representing clients in diverse litigation allows us to effectively handle all of your complex business challenges. When the potential exposure for your business can be extraordinarily high, you need a law firm you can trust.

MehaffyWeber is a nationally recognized firm providing skilled products liability defense for clients across a wide range of industries since 1946. We have defended Fortune 500 companies for over 70 years. Our firm was founded as a litigation firm, and we have been helping companies defend themselves from the start.