Opinion
No. ED87702.
December 26, 2006.
Appeal from the Circuit Court, St. Louis City, Honorable Steven R. Ohmer Judge.
Mark G. Arnold, Thomas M. Dee, Shirley A. Padmore, Clayton, Missouri 63105, For Respondents.
Michael A. Garvin, Saint Louis, Missouri 63105.
Richard E. Banks, Saint Louis, Missouri 63105.
Patricia Hageman, Steve Kovac, Saint Louis, Missouri 63103, For Appellants.
GLENN A. NORTON, P.J., KENNETH M. ROMINES J., and ROY L. RICHTER, J., concurring.
OPINION
The City of St. Louis appeals the summary judgment denying its public nuisance claim against lead paint and lead pigment companies. The issue on appeal is whether the City can prove causation without identifying any of these defendants' products at any particular location in the City. We would hold that it cannot and would affirm the judgment. But we transfer the case to the Supreme Court because of the general importance of and interest in this issue and so that the Supreme Court can reexamine existing law relating to this issue.
I.
BACKGROUND
The parties basically agree that there was and is lead paint in private residences and other buildings throughout the City and that lead paint can be harmful when ingestedby children, at least in some situations and to some degree. The City alleges in its complaint that between 1900 and 1978 the defendants put lead paint into the stream of commerce, knowing that it was dangerous, highly toxic and unfit for use in homes. The City claims that the defendants knew the paint would end up in housing in the City and knew that the paint would deteriorate over time and create a public health hazard. It seeks to recover the costs it has incurred and will incur in the future to assess, abate and remediate the lead paint.
Specifically, it alleges that the defendants "produced, manufactured, processed, marketed, promoted, supplied, distributed, sold, and/or placed."
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 or lead pigment 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., 676 S.W.2d 241 (Mo. banc 1984). 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 Zafft, 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.
II. DISCUSSION
The propriety of summary judgment is a question of law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
A. 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 plaintiff's 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, then 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. Id. The Court in Callahan used the example of two fires set on either side of a mountain that converge to destroy a cabin on top of the mountain. Id. 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 KEATON ON TORTS).
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 wrong. 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.E.D. 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., 192 S.W. 1022, 1024-25 (Mo. 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, 190 S.W. 877, 879 (Mo. banc 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 contend that here, as in Zafft, where a plaintiff claims injury from a product actual causation can be established only by identifying the defendant who made or sold that product. We agree with the defendants.
B. 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. 676 S.W.2d at 243. 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. Id. The plaintiffs claimed that the defendants represented all the known makers, sellers or distributors of DES in Missouri at the relevant time. Id. The plaintiffs were unable, however, to identify which defendant made or sold the particular product their mothers had ingested. Id. 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. Id. 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. Id. at 244.
Before addressing the plaintiffs' proposed theories, the Supreme 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. Id. at 245. The 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. (citing Collins v. Eli Lilly Co., 342 N.W.2d 37, 49 (Wis. 1984) and Sindell v. Abbott Laboratories, 607 P.2d 924, 936 (Cal. 1980)).
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, 676 S.W.2d at 247; see also Hagen v. Celotex Corp., 816 S.W.2d 667, 671 (Mo. banc 1991) (possibility that defendant's product "may have supplied the fatal exposure" of asbestos dust to plaintiff found insufficient to establish causation).
Zafft stands for the proposition that in a case, like this one, where the plaintiff seeks to hold the defendants liable 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. In terms of meeting the "but for" test for actual causation, it cannot be done without product identification. For example, to say that the City would not have incurred abatement cost but for Benjamin Moore's conduct, it must be shown that Benjamin Moore's lead paint had been among those abated. 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.
This case does not seem to fit the "two fires" exception to the "but for" test-that is, it does not seem that any one of these defendant's products, in themselves, could have been sufficient to cause the City's lead paint problem or the cost of abating it. Nonetheless, even in that type of case, it is not that cause-in-fact need not be proven; rather, it simply would not make sense to analyze actual causation in terms of the "but for" test. Moreover, in those cases, it is obvious that all the defendants' actions are causes-in-fact. Here, nothing is "obvious" without identifying whose products were in the abated properties.
C. Governmental Public Nuisance Claims
The City contends 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 [d]efendants' toxic products falls upon the City and its taxpayers." We recognize, as did the trial court, the "considerable appeal and potential merit" to the City's argument. As the trial court put it, while perhaps private individuals should not be permitted to rely on market-share evidence, perhaps governmental entities bringing public nuisance claims should be "since, in contrast to the probability that a particular manufacturer made paint that was sold and used in a particular house thereby injuring a particular individual, there is in fact a much greater statistical probability that lead paint manufacturers contributed to such governmental costs, and in relative proportion to their market share." To adopt that position, however, would be a departure from or require a modification of Zafft and the standards for proving actual causation.
Moreover, the damage at issue here is not the widespread threat to public health posed by the presence of lead paint; it is limited to the costs the City allegedly incurred abating and remediating lead paint in certain, albeit numerous, properties. In this way, the City's claims are akin to a private individual's claim of 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.W.D. 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). This cuts against the City's argument that its status as a governmental entity or the public nature of the injury should set this apart from other public nuisance or subject it to lesser causation standards.
D. Conclusion
We believe that Zafft's product identification requirement applies with equal force to public nuisance cases brought by governmental entities. We would hold that the trial court did not err in entering summary judgment against the City based on its inability to provide any product identification evidence. But, as our discussion reveals, the existing law affecting this case should be reexamined. Moreover, the standards of proof for causation in a public nuisance case brought by a governmental entity is an important question in which the general public has interest. Therefore, we transfer this case to the Supreme Court under Rule 83.02.
See City of Chicago v. American Cyanamid Co., 823 N.E.2d 126 (Ill.App. 1st Dist. 2005) (relying on Illinois DES case that rejected market-share approach for proposition that product identification was required to prove actual causation in lead paint public nuisance case brought by city); but see also City of Milwaukee v. NL Industries, Inc., 691 N.W.2d 888 (Wis.App. 2004) (evidence of defendants' community-wide marketing and sales of lead paint — without proof that defendants' paint was present in the properties at issue — was sufficient to create question of fact in public nuisance claim brought by city because injury was city-wide).
III. DISPOSITION
Transferred to the Supreme Court.