City of St. Louis v. Benjamin Moore & Co.

226 S.W.3d 110, 2007 Mo. LEXIS 104, 2007 WL 1693582

• Court: Supreme Court of Missouri
• Decided: June 12, 2007
• Docket: SC 88230
• Status: Published

Opinions

PER CURIAM.¹

INTRODUCTION

The city of St. Louis has a program to assess, abate and remediate lead paint because it can be harmful when ingested by children. The city filed this public nuisance claim against companies that put lead paint into the stream of commerce seeking to recover its costs for the program. The city could not connect any specific defendant to any specific abatement project. Correctly relying on Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. banc 1984), the trial court concluded that the evidence was not sufficient to prove causation and entered judgment for the defendants. That judgment is affirmed.

FACTS

The city alleges in its complaint that before 1978 the defendants “produced, manufactured, processed, distributed, and marketed” lead paint and pigment. It notes that such paint was widely used in housing, including in the city, and contends that the defendants knew it was highly toxic and posed a real and serious health threat, particularly for children. The city concludes that the “presence of lead paint in the [cjity’s housing built before February 27, 1978,² areas accessible to the public, unreasonably interferes with the public’s health, safety, welfare, and comfort.” The city then declares the presence of lead paint to be a temporary nuisance and seeks damages for assessing, abating, and remediating the nuisance.

During discovery, the city identified the private residences where it had incurred costs abating or remediating lead paint. It admitted, however, that it could not identify the manufacturer of any lead paint that was allegedly present at or abated from the properties at issue.

The defendants sought summary judgment, arguing that product identification was necessary to hold them liable under this or any tort theory, citing to Zafft v. Eli Lilly & Co. The city argued that product identification was not a requirement for this public nuisance claim brought by a governmental entity and that it only needed to show that the defendants substantially contributed to the lead paint problem in the city. The trial court characterized the evidence that the city claimed it would use to make that showing as “market-share evidence.”

While the court believed that such evidence may be relevant, it concluded that, under Zaffb, relying solely on that type of evidence in the absence of any product identification was not sufficient to prove causation. The court granted the defendants’ motion for summary judgment, and the city appeals.

DISCUSSION

Standard of review

The propriety of summary judgment is a question of law, and appellate review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Actual causation and legal causation

In all tort cases, the plaintiff must prove that each defendant’s conduct was an actual cause, also known as cause-in-fact, of the plaintiffs injury:

Any attempt to find liability absent actual causation is an attempt to connect the defendant with an injury or event that the defendant had nothing to do with. Mere logic and common sense dictates that there be some causal relationship between the defendant’s conduct and the injury or event for which damages are sought.

Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 862 (Mo. banc 1993). Once actual causation has been established, the issue becomes one of legal cause — also known as proximate cause— that is, whether the defendant should be held liable because the harm is the reasonable and probable consequence of the defendant’s conduct. Id. at 865.

In most cases, the plaintiff must establish actual causation by showing that the alleged harm would not have occurred “but for” the defendant’s conduct. Id. at 862. The only exception is for cases involving two independent torts, either of which is sufficient in itself to cause the injury.³ Id.

The city argues that the Restatement (Second) of Torts sets forth the proper standard for causation in a public nuisance case:

One is subject to liability for a nuisance caused by an activity, not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.

Restatement (Second) of Torts section 834. To the extent the city’s argument is that the Restatement requires something less than proof of actual causation or should replace actual causation in a public nuisance case, it is incorrect. The comments accompanying section 834 reveal that “substantial participation” refers to legal cause and is not meant to replace the requirements of actual causation:

When a person is only one of several persons participating in carrying on an activity, his participation must be substantial before he can be held liable for the harm resulting from it. This is true because to be a legal cause of harm a person’s conduct must be a substantial factor in bringing it about. (See [sections] 431-433, and [section] 876).

Restatement (Second) of Torts section 834, comment d; see also sections 431 and 432 (providing that conduct is a legal cause if it is a substantial factor in bringing about the harm, but it cannot be a substantial factor unless it first meets the test for actual causation). The Restatement does not abandon the requirement of proving actual causation in a public nuisance claim.

Missouri public nuisance cases are in accord and require the plaintiff to show a causal link between the defendant and the alleged nuisance. City of St. Louis v. Varahi, Inc., 39 S.W.3d 531, 535-38 (Mo. App.2001) (city failed to prove that hotel’s hourly rental policy, reputation and few incidents of arrest caused public nuisance of prostitution on street outside hotel); see also State ex rel. Weatherby v. Dick & Brothers Quincy Brewing Co., 270 Mo. 100, 192 S.W. 1022, 1024-25 (1917) (state failed to prove that brewery’s beer sales to dry county caused public nuisance of drinking and causing a disturbance); State ex rel. Chicago, B. & Q. Railway Co. v. Woolfolk, 269 Mo. 389, 190 S.W. 877, 879 (1916) (state failed to prove that railroad’s delivery of liquor to dry county created public nuisance of drinking and causing disturbance).

The city’s argument also seems to be that actual causation can be proven by showing that the defendant substantially contributed to the public health hazard created by lead paint via evidence of “community wide marketing and sales of lead paint.” The defendants correctly contend that here, as in Zaffl, where a plaintiff claims injury from a product, actual causation can be established only by identifying the defendant who made or sold that product.

Product identification

Zafft was one of a number of similar lawsuits across the country stemming from claims that diethylstilbestrol (DES) taken during pregnancy caused cancer in female offspring. The plaintiffs in Zafft sued various manufacturers and distributors of DES, claiming that it was defective and seeking to hold the defendants responsible on theories of strict liability for failing to adequately warn about or test the drug. The plaintiffs claimed that the defendants represented all the known makers, sellers or distributors of DES in Missouri at the relevant time. The plaintiffs, however, were unable to identify which defendant made or sold the particular product their mothers had ingested. The drug had been marketed generically by as many as 300 different companies, and — through no fault of the plaintiffs — it was impossible to match a specific dosage with an individual manufacturer. The plaintiffs contended that justice required that they be able to pursue some type of alternative theory of liability with a more relaxed standard of causation or none at all. Zaffl at 243-44.

Before addressing the plaintiffs’ proposed theories, this Court noted that “under strict liability, as with any other tort theory, plaintiff must establish some causal relationship between the defendant and the injury-producing agent.” Id. The Court then rejected each proposed theory, including market-share liability. Id. at 244-46.

Under a market-share approach to liability, the plaintiff must join enough defendants to constitute a substantial share of the market and then the burden shifts to each defendant to exonerate itself or join the responsible parties not named by plaintiffs. This Court concluded that market-share liability is “unfair, unworkable, and contrary to Missouri law, as well as unsound public policy.” Id. at 246. Among other problems, market-share liability “continues the risk that the actual wrongdoer is not among the named defendants, and exposes those joined to liability greater than their responsibility.” Id. The Court recognized that the plaintiffs were innocent and claimed serious injuries, but “simply to state, as have courts ruling in favor of plaintiffs, that as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury and that defendants can better absorb this cost, ignores strong countervailing considerations.” Id.

This Court concludes that the theories advanced by plaintiffs do not persuade the Court to abandon the Missouri tort law which requires that they establish a causal relationship between the defendants and the injury-producing agent as a precondition to maintenance of their causes of action. Strict liability in tort continues to provide a remedy to those plaintiffs who satisfy the identification requirement.

Zafft at 247.

Under Zaffl, where the plaintiff seeks to hold the defendants hable on the basis that their products caused harm to the plaintiff, the identification requirement must be satisfied. Without product identification, the city can do no more than show that the defendants’ lead paint may have been present in the properties where the city claims to have incurred abatement costs. That risks exposing these defendants to liability greater than their responsibility and may allow the actual wrongdoer to escape liability entirely.

Even assuming that the city could prove — via marketing evidence or something else short of product identification— that a particular defendant held a certain share of the lead paint market in the city at the relevant time or even if it could prove that because of that defendant’s market share there was a statistical probability that its paint was in a certain percentage of the properties at issue — that would not establish that the particular defendant actually caused the problem. Absent product identification evidence, the city simply cannot prove actual causation.

Governmental public nuisance claims

The city contends, and the dissent would hold, that this public nuisance claim does not fit within the causation standards for other torts because the damage is not an individual injury, but a widespread health hazard that is “uniquely public — the monumental task of cleaning up [defendants’ toxic products falls upon the City and its taxpayers.” The trial court noted the attractiveness of the argument, but concluded that to adopt it would require a departure from or require a modification of Zaffi and the standards for proving actual causation. This Court declines to approve such a departure in this case.

Although the city characterizes its suit as one for an injury to the public health and suggests that it is for this injury that it is suing, this is not the case. The damages it seeks are in the nature of a private tort action for the costs the city allegedly incurred abating and remediating lead paint in certain, albeit numerous, properties. In this way, the city’s claims are like those of any plaintiff seeking particularized damages allegedly resulting from a public nuisance. The city, therefore, must meet the same causation standard as must other nuisance claimants and must show specific and particularized harm from the public nuisance of lead paint, different in kind from the harm to the rest of the community.

A public nuisance is any unreasonable interference with the rights common to all members of the community in general and encompasses the public health, safety, peace, morals or convenience.... The public nuisance also becomes a private tort when an individual shows a particular damage of a kind not shared with the rest of the public.... the private tort accrues to recompense damage particular to the person and not shared with the general public.

State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 114— 15, (Mo.App.1984) (suit by state, in the stead of municipality, to recompense for public injury caused by striking public employees did not seek damages distinctive from those suffered by general community and, thus, was not a private tort). The city’s argument, accepted by the dissent, that its status as a governmental entity or the public nature of the injury should set this apart from other public nuisances or subject it to lesser causation standards does not apply to the damage suit it has actually brought.

CONCLUSION

Zajft’s product identification requirement applies with equal force to public nuisance cases brought by governmental entities for monetary damages accrued as an alleged result of the public nuisance. The trial court did not err in entering summary judgment against the city based on its inability to provide any product identification evidence.

The judgment is affirmed.

STITH, PRICE, LIMBAUGH and RUSSELL, JJ., concur. WOLFF, C.J., dissents in separate opinion filed. TEITELMAN and WHITE, JJ., concur in opinion of WOLFF, C. J.

1 . The Court of Appeals, Eastern District, transferred this case to this Court by an opinion authored by the Honorable Glenn A. Nor-tón. Mo. Const, article V, section 10. Parts of that opinion are incorporated without further attribution.

2 . The federal government banned lead paint on February 27, 1978. 42 FR 44199, Septem-her 1, 1977; codified at 16 CFR part 1303.

3 . In Callahan this Court used the example of two fires set on either side of a mountain that converge to destroy a cabin on top of the mountain. Callahan at 861. In those types of cases, it is obvious that each tort is an actual cause — in the "two fires” example, both fires obviously are causes-in-fact of the cabin’s destruction — and the analysis moves directly to whether each tort was a substantial factor in causing the injury and thus can be considered a legal cause. See id. (discussing approaches to causation under the Restatement (Second) of Torts and under Prosser and Keeton on Torts).