Silverman and Bennett: Montana Enacts Law to Stem Expansions of Public Nuisance Liability
Montana Gov. Greg Gianforte signed into law first-of-its-kind legislation codifying established principles of public nuisance law, a response to efforts from state and local governments to convert public nuisance law into a “super tort,” according to Shook Partner Cary Silverman and Associate Jacob Bennett. Silverman and Bennett wrote about the law in a Legal Opinion Letter for the Washington Legal Foundation.
In “Montana Enacts First-of-its-Kind Law to Stem Expansions of Public Nuisance Liability,” Silverman and Bennett discuss the origins of public nuisance law and describe efforts from the plaintiffs’ bar to expand public nuisance beyond its traditional roots to a tool requiring businesses to pay the costs for social harms associated with lawful products. They say governments have sought to use public nuisance law to circumvent product liability and marketing laws, including in litigation against product manufacturers to obtain costs associated with gun violence and lead paint remediation.
“Courts have mostly rejected attempts to jettison the core elements of public nuisance claims,” they say. “They have recognized that without boundaries, public nuisance threatens to ‘become a monster that would devour in one gulp the entire law of tort.’”
