Potential Liability for Businesses Under the Public Nuisance Doctrine

Sign up for our Coronavirus roundup email.
Visit our Coronavirus resource page.

The concept of nuisance has been around for centuries, but in more recent years has been dusted off as a potential source of legal redress for large scale-public health problems like the opioid epidemic. Today, plaintiffs lawyers have already begun testing the doctrine’s viability in COVID-19 litigation.

While state law varies, the public nuisance doctrine generally protects the public against unreasonable and substantial interference with a public right. See Restatement (Second) of Torts § 821B (1979). Such rights include the rights of public health, safety, peace, comfort, and convenience. Since the impact of the nuisance is felt by the public, the law generally limits the right to sue to public officials. A private individual, however, may be allowed to assert a claim for public nuisance if he or she can show a “special injury” that was not common to the public.

In the context of liability based on exposure to COVID-19, employees or customers bringing nuisance suits as private plaintiffs will likely face an uphill battle in proving a “special injury” since the harm resulting from exposure to the virus is the same in kind as that suffered by everyone else. Moreover, it is not enough that the plaintiff suffered the same harm “but to a greater extent or degree.” See, e.g., Sullivan v. Chief Justice for Admin. & Mgmt. of Trial Ct., 448 Mass. 15, 35 (2006) (no “special injury” for exposure to asbestos in courthouse where the harm was the same in kind as that suffered by other members of the public exposed to the conditions at the courthouse, even if employees faced the greatest exposure).

This is especially true where the employer is in full compliance with state and local ordinances governing COVID-19 business practices. Lawful compliance with a state ordinance or regulation is typically a good defense to a public nuisance suit. Recent public nuisance cases, however, have made it clear that compliance with the law is not dispositive, but rather serves as a guideline in determining whether an unreasonable interference has occurred.

In today’s legal landscape, where conduct and business activities are thoroughly regulated by statutes and administrative rules, courts generally shy away from expanding the scope of the doctrine. Even if a court finds that the activity in question is a nuisance, courts may permit it to continue if the utility of the activity outweighs the harm to the plaintiff. In such cases, a court will not issue an injunction, but will instead order the creator of the nuisance to make ongoing payments to the plaintiff, which may be a significant amount depending on the harm and the specific activity at issue.

Public nuisance issues were recently litigated in a federal lawsuit filed by a non-profit organization and an employee at a Smithfield Foods meat-processing plant in Missouri. The Plaintiffs claimed that the company failed to adequately protect its workers from exposure to the virus at the plant, and thus created a public nuisance by exposing the surrounding community to harm. The Plaintiffs more specifically alleged that the company was not complying with guidance from the Centers for Disease Control (“CDC”) and the Occupational Health and Safety Administration (“OSHA”) to meat-processing plants concerning COVID-19, and that Smithfield Foods’ non-compliance constituted a public nuisance.

This week, the Court in the Smithfield Foods case dismissed the Plaintiffs’ claims under the primary jurisdiction doctrine, finding that OSHA (in coordination with the US Department of Agriculture (“USDA”) under an applicable Executive Order) was better positioned to determine whether Smithfield Foods was in compliance with the guidance, and that only deference to OSHA/USDA would ensure a uniform national enforcement of the guidance. The Court also denied the Plaintiffs’ motion for a temporary restraining order and preliminary injunction. The Court concluded that Plaintiffs had not demonstrated a likelihood to succeed on the merits of their public nuisance claim, reasoning that the plant could not be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a pandemic. Additionally, the Court pointed to the fact that Smithfield Foods had implemented substantial safety measures to protect workers at the plant, and no plant workers had been diagnosed with COVID-19.

Nevertheless, the threat of public nuisance claims remains, and further reinforces the importance of compliance with state and local ordinances, as well as the most recent CDC and OSHA safety standards. Businesses should consider implementing measures specific to their working environment and location, which may include providing employees with adequate protective equipment, implementing a plan for testing and contact-tracing its workers that have been exposed to the virus, and regularly communicating these requirements to its employees.