State v. Lead Industries, Ass'n, Inc.

OPINION

Addressing the issues seriatim for a unanimous Court, Chief Justice Williams authored Tracks I and II and Associate Justices Suttell, Flaherty, and Robinson authored Tracks III, IV, and V, respectively. In this landmark lawsuit, filed in 1999, the then Attorney General, on behalf of the State of Rhode Island (the state), filed suit against various former lead pigment manufacturers and the Lead Industries Association (LIA), a national trade association of lead producers formed in 1928.

After the first trial resulted in a mistrial, a second trial commenced; that second trial, spanning four months, became the longest civil jury trial in the state’s history. 1 This monumental lawsuit 2 marked the first time in the United States that a trial resulted in a verdict that imposed liability on lead pigment manufacturers for creating a public nuisance.

After a four-month trial, which concluded on February 22, 2006, a jury found defendant manufacturers, NL Industries, Inc. (formerly National Lead Co.) (NL), The Sherwin-Williams Co. (Sherwin-Williams), and Millennium Holdings LLC (Millennium) (collectively defendants), liable under a public nuisance theory. 3 Both before and after the jury returned its verdict, the trial justice issued nineteen written decisions, ruling on a variety of pretrial, trial, and post-trial motions that both the state and defendants had filed. The defendants filed an appeal from the judgment entered against them. The state, for its part, appealed the judgment in favor of defendant Atlantic Richfield Co. (ARCO) and two contempt orders that had been entered against the Attorney General. In addition, in 2004, defendants had petitioned this Court for a writ of certiorari to review the issue of contingency fees. We issued the writ, but thereafter concluded that the matter was not then justiciable. See State v. Lead Industries Association, Inc., 898 A.2d 1234, 1235 (R.I.2006). The *435 defendants have asked this Court to entertain that petition again. Finally, the state cross-appealed on the issue of compensatory damages.

Because of the sheer number of parties and the complexity of issues involved in these appellate proceedings, this Court consolidated all the appeals filed with this Court and established a five-track procedure for the briefing of all pending appeals and cross-appeals. The five tracks are: (1) the individual liability appeals of defendants, Millennium, NL, and Sherwin-Williams, from the judgment of abatement in favor of the state; (2) the state’s cross-appeal on the issue of compensatory damages; (3) the state’s appeal from the judgment in favor of ARCO and ARCO’s conditional cross-appeal; (4) the state and the Attorney General’s appeal of contempt orders entered in December 2005 and June 2006 against the state Attorney General; and (5) the issue of the propriety of the state’s entering into a contingency fee agreement with private counsel to prosecute the public nuisance action, which issue is before us pursuant to our issuance of a writ of certiorari. This Court heard oral arguments on each appeal on May 15, 2008. This opinion addresses the issues seriatim.

Track I

Liability

On appeal from, inter alia, the trial justice’s denial of their motion to dismiss, their renewed motion for judgment as a matter of law, and their alternative motion for a new trial, defendants, Millennium, NL, and Sherwin-Williams, argue that the trial justice erred by: (1) misapplying the law of public nuisance; (2) finding a causal connection between defendants’ actions and lead poisoning in Rhode Island; and (3) failing to hold that this action is barred by the constitutional provision concerning separation of powers. In addition, defendants direct this Court’s attention to a variety of alleged errors occurring at trial, some of which they contend amount to violations of both the United States and Rhode Island constitutions. For the reasons set forth herein, we reverse the judgment of the Superior Court as to the liability of defendants, Millennium, NL, and Sherwin-Williams, because we conclude that the trial justice erred by denying defendants’ motion to dismiss. More specifically, we conclude that the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.

In reaching this conclusion, we do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning. Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law. As set forth more thoroughly herein, defendants were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. Furthermore, the General Assembly has recognized defendants’ lack of control and inability to abate the alleged nuisance because it has placed the burden on landlords and prop *436 erty owners to make their properties lead-safe.

This Court is bound by the law and can provide justice only to the extent that the law allows. Law consists for the most part of enactments that the General Assembly provides to us, 4 whereas justice extends farther. Justice is based on the relationship among people, but it must be based upon the rule of law. This Court is powerless to fashion independently a cause of action that would achieve the justice that these children deserve. United States Supreme Court Justice Benjamin N. Cardozo, a rightly revered student of the law, once summarized as follows the inherent limitations of the judicial role:

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) (quoting Frangois Gény, Méthode d’Interprétation et Sources en droit privé positif, vol. II, p. 303, sec. 200, ed. 1919; transí. Modern Legal Philosophy Series).

Likewise, in the words of United States Supreme Court Chief Justice John G. Roberts, Jr., “judges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.” John G. Roberts, Jr., United, States Senate Committee on the Judiciary Questionnaire 66, http:// www.nytimes.com/packages/pdf/politics/ 20050802roberts2.pdf) (August 2, 2005). In recognition of this philosophy, we consistently have adhered to “principles of judicial restraint [that] prevent [courts] from creating a cause of action for damages in all but the most extreme circumstances.” Bandoni v. State, 715 A.2d 580, 595 (R.I.1998). Indeed, we long have held “that the creation of new causes of action is a legislative function.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). After all, the judiciary’s “duty [is] to determine the law, not to make the law.” City of Pawtucket v. Sundlun, 662 A.2d 40, 57 (R.I.1995). “To do otherwise, even if based on sound policy and the best of intentions, would be to substitute our will for that of a body democratically elected by the citizens of this state and to overplay our proper role in the theater of Rhode Island government.” DeSantis v. Prelie, 891 A.2d 873, 881 (R.I.2006).

I

Facts and Travel

It is undisputed that lead poisoning constitutes a public health crisis that has plagued and continues to plague this country, particularly its children. The General Assembly has declared that although “[c]hildhood lead poisoning is completely preventable,” G.L. 1956 § 23-24.6-2(3), it is “the most severe environmental health problem in Rhode Island.” Section 23-24.6-3. Indeed, Providence has received the unfavorable nickname “the lead paint capital” because of its disproportionately large number of children with elevated blood-lead levels. Lead Industries Associ *437 ation, Inc., 898 A.2d at 1285 (quoting Peter B. Lord, Are lead-paint firms liable for damages?, The Providence Journal, June 18,1999, at A-l).

A

Dangers of Lead Poisoning

Lead is a toxic chemical that contributes to the “most common environmental disease of young children.” Office of Lead-Based Paint Abatement and Poisoning Prevention, 61 Fed. Reg. 29170 (June 7, 1996) (quoting Strategic Plan for the Elimination of Lead Poisoning, Centers for Disease Control (CDC), U.S. Department of Health and Human Services, Atlanta, Georgia (1991)). There seems to be little public debate that exposure to lead can have a wide range of effects on a child’s development and behavior. Contact with low levels of lead may lead to “permanent learning disabilities, reduced concentration and attentiveness and behavior problems, problems which may persist and adversely affect the child’s chances for success in school and life.” Section 23-24.6-2(1). The consequences are more injurious when children are exposed to higher lead levels. Office of Lead-Based Paint Abatement and Poisoning Prevention, 61 Fed. Reg. at 29170. Children exposed to elevated levels of lead can suffer from comas, convulsions, and even death. Id.

Lead was widely used in residential paints in the United States until the mid-1970s. Id. at 29171. There is no doubt that lead-based paint is the primary source of childhood lead exposure. Id. (citing Preventing Lead Poisoning in Young Children, CDC, U.S. Department of Health and Human Services, Atlanta, Georgia (1991) and Rabinowitz, M. et al., Environmental Correlates of Infant Blood Lead Levels in Boston, Environmental Research 38: 96-107 (1985). In the United States, children most often are lead-poisoned by ingesting lead paint chips from deteriorating walls or inhaling lead-contaminated surface dust. Id.

Children under six years of age are the most susceptible to lead poisoning for two primary reasons. First, children are more likely to encounter lead; young children spend a significant portion of their time on the floor, among the dust and chips of lead paint. Second, because they are young, children’s growing bodies have a tendency to absorb more lead, and their brains and nervous systems are more sensitive to the lead.

Most lead pigment manufacturers belonged to the LIA as early as 1928, but the length of each company’s membership varied considerably. Sherwin-Williams discontinued its membership in 1947, whereas Millennium remained a member until 1960, and NL remained a member until 1982. At trial, the state offered the minutes of a December 12,1930, LIA board of directors meeting, containing a section titled “Lead Poisoning.” The minutes refer to a discussion of recent news articles concerning the dangers of lead-based paint, including an article in the November 20,1930, edition of The United States Daily, which reported: “Lead poisoning as a result of chewing paint from toys, cradles and woodwork is now regarded as a more frequent occurrence among children than formerly.” Lead-free paint on furniture and toys to protect children, The United States Daily, Nov. 20, 1930. The minutes implied doubt about the extent of the problem, but demonstrated emerging knowledge of the problem within the industry.

B

Lead Poisoning in Rhode Island

Patricia A. Nolan, M.D., former director of the Rhode Island Department of Health (RIDOH), testified that from January 1993 *438 to December 2004 at least 37,363 children in Rhode Island were poisoned by lead in paint. In 2004, a total of 1,685 children in Rhode Island were affected. Rhode Island Department of Health, Childhood Lead Poisoning in Rhode Island: The Numbers 2005 Edition 4, 19 (hereinafter The Numbers 2005). Of this number, almost 70 percent of the children (1,167) were newly poisoned in 2004. Id. Fortunately, the prevalence of lead poisoning in children under the age of six recently has declined. Id. In 2005, RIDOH reported a 76 percent decline in the number of lead-poisoned children-from 20.5 percent in 1995 to 5 percent in 2004. Id. However, despite this significant decrease in childhood lead poisonings, the 5 percent prevalence rate is more than double the national average of 2.2 percent. Id.

C

Legislative Responses

In 1971, Congress recognized the prevalence of childhood lead poisonings and enacted chapter 63 of title 42 of the United States Code, the Lead-Based Paint Poisoning Prevention Act (LPPPA), a law aimed at studying the effects of childhood lead exposure and eliminating lead-based paint from federally owned or federally financed housing. Finally, in 1978, the Consumer Product Safety Commission banned the sale of residential paint containing more than 0.06 percent lead. See Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paints, 16 C.F.R. § 1303.1 (2008); see also Office of Lead-Based Paint Abatement and Poisoning Prevention, 61 Fed. Reg. at 29171.

Rhode Island, with a housing stock of older homes, also has recognized the depth of this problem. 5 In the early 1990s, the General Assembly began an investigation into childhood lead poisoning in Rhode Island. The General Assembly found that the “[e]nviromental exposure[ ] to even low levels of lead increase^] a child’s [health] risk,” and that “[t]he most significant sources of environmental lead are lead-based paint in older housing and house dust and soil contaminated by this paint.” Section 23-24.6-2(1), (2). It also found that “tens of thousands of Rhode Island’s children are poisoned by lead at levels believed to be harmful,” and that “Childhood lead poisoning is dangerous to the public health, safety, and general welfare of the people and necessitates excessive and disproportionate expenditure of public funds for health care and special education, causing a drain upon public revenue.” Section 23-24.6-2(4), (5).

In response to these findings, in 1991 (P.L. 1991, ch. 355, § 1), the General Assembly enacted the Lead Poisoning Prevention Act (LPPA), chapter 24.6 of title 23, which required RIDOH to implement various programs, including statewide blood-screening programs, lead-poisoning prevention programs, and educational programs. Section 23-24.6-5(a). The LPPA’s stated purpose was to establish “a comprehensive program to reduce exposure to environmental lead and prevent childhood lead poisoning, the most severe environmental health problem in Rhode Island.” Section 22-24.6-3.

To supplement this initiative, in 2002, the General Assembly later enacted the Lead Hazard Mitigation Act (LHMA) (P.L. 2002, ch. 187, § 3), G.L. 1956 chapter 128.1 of title 42, to help identify and correct lead hazards in this state. See Mack ie v. State, 936 A.2d 588, 590 (R.I.2007). The LHMA imposed, inter alia, several *439 duties on the owners of rental dwellings that were constructed prior to 1978, which included correcting lead hazards on their premises. Id. (citing § 42-128.1-8(a)). This Court upheld challenged provisions of the LHMA in 2007. Id. at 597 (concluding that provisions of the LHMA were constitutional because “the General Assembly rationally could have concluded that the legislation was one step toward resolving the problem of lead poisoning of children in Rhode Island”).

The General Assembly’s programs for curtailing the incidence of lead poisoning in Rhode Island have been successful. Since the LPPA and LHMA have been in effect, Rhode Island has experienced a substantial decline in the number of lead-poisoned children. In 2004, Dr. Nolan acknowledged that since 1994, there has been a dramatic decrease in the incidence of lead poisoning among Rhode Island children. Rhode Island Department of Health, Childhood Lead Poisoning in Rhode Island: The Numbers 2004 Edition 1 (hereinafter The Numbers 2004). In fact, at trial, Dr. Nolan agreed that the progress has proven to be a “public health success story.”

RIDOH reported, in 2004, a number of accomplishments, highlighting five programs in particular. RIDOH implemented the Lead Elimination Surveillance System database, which increased the efficiency of collecting and analyzing data. The Numbers 2004 at 4. The Keep Your Baby Lead Safe program, an undertaking designed to reach pregnant women and facilitate access to a lead-safe home was enhanced, providing mothers-to-be with lead education as well as referrals to numerous community resources. Id. RIDOH also provided information and education to pregnant women, parents, physicians, and other professionals, enhanced case management through certified lead centers, and implemented the initial steps required by the LHMA. Id. at 4-5.

The General Assembly’s approach to Rhode Island’s lead paint problem and RI-DOH’s promulgation of regulations aimed at reducing lead hazards have proven effective and, as a result, the entire state— including its “core cities” 6 — has experienced substantial declines in lead poisoning. The Numbers 2005 at 15.

D

Attorney General’s Lawsuit

On October 12, 1999, the Attorney General, on behalf of the state filed a ten-count complaint against eight former lead pigment manufacturers, John Doe corporations, and the LIA. 7 The manufacturers were: NL, Sherwin-Williams, ARCO, The Glidden Company, 8 The O’Brien Corporation, 9 SCM Chemicals (SCM), American Cyanamid Company, 10 and E.I. Du Pont de *440 Nemours and Company. 11 The state later amended its complaint to include the Con-Agra Grocery Products Company. 12 A second-amended complaint added Cytec Industries, Inc. 13 and substituted Millennium Inorganic Chemicals, Inc. for SCM. 14

The state alleged that the manufacturers or their predecessors-in-interest had manufactured, promoted, distributed, and sold lead pigment for use in residential paint, despite that they knew or should have known, since the early 1900s, that lead is hazardous to human health. The state also contended that the LIA was, in essence, a coconspirator or aider and abettor of one or more of the manufacturers from at least 1928 to the present. The state asserted that defendants failed to warn Rhode Islanders of the hazardous nature of lead and failed to adequately test lead pigment. In addition, the state maintained that defendants concealed these hazards from the public or misrepresented that they were safe. The state further alleged that defendants’ actions caused it to incur substantial damages. As such, the state asserted, defendants were liable for public nuisance, violations of Rhode Island’s Unfair Trade Practices and Consumer Protection Act, strict liability, negligence, negligent misrepresentation, fraudulent misrepresentation, civil conspiracy, unjust enrichment, and indemnity. The state also requested equitable relief to protect children in Rhode Island. 15 The state sought compensatory and punitive damages, in addition to an order requiring defendants to (1) abate lead pigment in all Rhode Island buildings accessible to children and (2) fund educational and lead-poisoning prevention programs.

In January 2000, defendants moved to dismiss all counts of the state’s complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. With respect to the public nuisance claim, defendants asserted that they did not control the lead pigment at the time it caused harm to Rhode Island children and that, therefore, they cannot be held liable for public nuisance. The defendants also argued that there was no interference with a public right, as that term has been recognized under public nuisance law. For its part, however, the state countered that the public nuisance claim was proper because defendants could be held liable regardless of whether they currently control the lead-poisoned properties. The state urged that defendants’ participation in the creation of the nuisance should subject them to liability. The trial justice, agreeing with the state, denied defendants’ motion.

The trial justice dismissed several other counts and ordered that the case be tried in three phases. Eventually, only the state’s public nuisance claim proceeded to *441 trial. After a seven-week trial, however, the jury was deadlocked and the trial justice declared a mistrial.

Before a second trial commenced, the state moved to strike defendants’ demand for a jury trial, contending that its public nuisance claim was equitable in nature and that defendants had no right to a jury trial on that issue. At that time, the state voluntarily dismissed with prejudice all other non-equitable claims remaining in the case, including the following counts: strict liability, negligence, negligent misrepresentation, and fraudulent misrepresentation. The trial justice, however, denied the state’s motion to strike the jury demand, concluding that the existence of a nuisance was a factual issue to be resolved by a jury and, further, that the state’s demand for compensatory and punitive damages entitled defendants to a jury trial.

Before trial, the state moved in limine to exclude all evidence and testimony with respect to the presence or absence of lead paint in any individual Rhode Island property; the trial justice granted this motion. In so ruling, the trial justice noted that “property specific evidence is irrelevant in connection with the issue of whether the cumulative effect of such pigment in all such buildings * * * was a public nuisance

The defendants then moved for summary judgment with respect to the civil conspiracy count of the state’s complaint. The trial justice granted defendants’ motion, concluding that “civil conspiracy cannot stand in isolation,” but rather, must be accompanied by an “underlying intentional tort theory.” Because all the intentional tort theories had been dismissed, the trial justice concluded that it was proper to dismiss the civil conspiracy count as well.

The defendants also moved for summary judgment on the basis that the state could not identify any specific defendant whose lead pigment is present in any Rhode Island property. To support their motion, defendants relied primarily on this Court’s decision in Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I.1991) (mem.), in which this Court rejected the market-share theory of products liability that the California Supreme Court had adopted. The trial justice denied defendants’ motion, stating that product identification is not a necessary element in a public nuisance suit. Rather, the trial justice ruled that the state “need only show that each defendant (or such defendants as it seeks to hold liable for the public nuisance here claimed) has engaged in activities which were a substantial factor in bringing about the alleged public nuisance and the injuries and harm found to have been proximately caused thereby.”

After these and other motions were dealt with, the second trial proceeded, this time against only four manufacturers— Millennium, NL, Sherwin-Williams, and ARCO.

At trial, the state presented witnesses who offered historical evidence about the use of lead pigment in paint, the impact of childhood lead poisoning on Rhode Island, and defendants’ conduct concerning lead pigment in paint.

After the state rested, defendants moved immediately for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure. Their primary contention was that the state had failed to prove a sufficient nexus between defendants’ activities and the presence of lead pigment in Rhode Island. After hearing the arguments of counsel, the trial justice granted defendants’ motion with respect to the state’s indemnification and unjust enrichment claims and its request for compensatory damages. The court reserved judgment, however, on whether the state had proven a sufficient *442 nexus between defendants’ activities and the presence of lead pigment in Rhode Island.

The trial justice provided the jury with the law applicable to the case and instructed the jury to apply that law to the facts as it found them based on the evidence presented. First, the trial justice explained that the jury was being asked to determine “whether the cumulative presence of lead pigment in paints and coatings in or on buildings throughout the state of Rhode Island constitutes a public nuisance.” He defined public nuisance as “something that unreasonably interferes with a right common to the general public. It is something that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community.” He further explained that the right common to the general public is collective in nature and belongs to the community at large. The trial justice then clarified that “an interference is an injury, invasion, disruption, or obstruction of a right held by the general public.” He added that an interference “is unreasonable when persons have suffered harm or are threatened with injuries that they ought not have to bear.”

After providing the jury with a definition of public nuisance and detailing the elements, the trial justice also told the jury that if it found that a public nuisance exists, it then must determine whether defendants’ actions were the proximate cause of the nuisance. He defined proximate cause as “a cause that in a natural, continuous, and unbroken sequence produces an event or injury and without which the event or injury would not have occurred.”

Lastly, the trial justice instructed the jury that if it concluded that the cumulative presence of lead pigment in paint is a public nuisance and that defendants are liable, it then must decide whether any defendants should abate the public nuisance. The trial justice provided the jury with written copies of the instructions.

The jury began deliberations on February 14, 2006, and returned its verdict on February 22, 2006; it found that the “cumulative presence of lead pigment in paints and coatings on buildings throughout the State of Rhode Island” constituted a public nuisance. The jury further found that defendants, Millennium, NL, and Sherwin-Williams, were liable for causing or substantially contributing to the creation of the public nuisance. Lastly, the jury concluded that those three defendants “should be ordered to abate the public nuisance.” The jury found that a fourth defendant, ARCO, was not hable.

After the verdict, defendants renewed their motions for judgment as a matter of law pursuant to Rule 50 and moved alternatively for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure. The trial justice denied both these motions. While these motions were pending, defendant Sherwin-Williams filed with the Superior Court supplemental motions pursuant to Rules 26(e), 59, 60(b)(2), and 60(b)(3) of the Superior Court Rules of Civil Procedure; defendants Millennium and NL joined in these motions. Again, the trial justice denied all of these motions.

On March 16, 2007, the court entered a judgment of abatement in favor of the state against defendants, Millennium, NL, and Sherwin-Williams, from which they appeal.

Additional facts will be provided as necessary.

II

Analysis

A

Standard of Review

When reviewing a trial justice’s decision on a Rule 12(b)(6) motion to dis *443 miss, this Court applies the same standards as the trial justice and, accordingly, “must assume that the allegations contained in the complaint are true, and examine the facts in the light most favorable to the nonmoving party.” A.F. Lusi Construction, Inc. v. Rhode Island Convention Center Authority, 984 A.2d 791, 795 (R.I.2007) (internal quotation marks omitted). Like the trial justice, we will “examine the complaint to determine if plaintiffs are entitled to relief under any conceivable set of facts.” Id.

B

Public Nuisance

The defendants first argue that the trial justice erred in refusing to dismiss the public nuisance count set forth in the state’s complaint. They also argue that the trial justice erred in denying their motion for judgment as a matter of law. The defendants contend that the public nuisance claim should have been dismissed at the outset — or, at the very least, that judgment as a matter of law should have been entered in their favor because suppliers of lead pigment cannot be held liable under a public nuisance theory for harm resulting from lead-based paint in Rhode Island. In addition, defendants argue that the trial justice erred when he instructed the jury on the law of public nuisance. We agree with defendants that the public nuisance claim should have been dismissed at the outset because the state has not and cannot allege that defendants’ conduct interfered with a public right or that defendants were in control of lead pigment at the time it caused harm to children in Rhode Island. We reach this conclusion with a keen realization of how limited the judicial system often is. We believe that the following recent observation by this Court in another case is equally applicable to this case:

“The American judicial system as it exists today is admirable: it is the product of many decades of fine-tuning of an already excellent substantive and procedural construct which this country took with it when it parted ways with England. Nevertheless, our judicial system is not a panacea that can satisfy everyone who has recourse to it. Some wrongs and injuries do not lend themselves to full redressment by the judicial system.” Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 188 (R.I.2008).

1

History of Public Nuisance

The definition of public nuisance and the description of the elements comprising this cause of action have been developed and refined by this Court over the years. Mindful of the admonition of United States Supreme Court Justice Oliver Wendell Holmes, Jr. that “[i]n order to know what [the law] is, we must know what it has been, and what it tends to become” as that is “necessary to the knowledge of what the law is,” we begin our analysis by retracing the history of public nuisance at common law. Oliver Wendell Holmes, Jr., The Common Law 1, 37 (Dover ed., General Publishing Co., Ltd., 1991) (1881).

Today, public nuisance and private nuisance are separate and distinct causes of action, but both torts are inextricably linked by their joint origin as a common writ, dating to twelfth-century English common law. See Richard 0. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941, 951 (2007) (citing C.H.S. Fifoot, History and Sources of the Common Law: Tort and Contract 3-5 (1949)); Donald G. Gifford, Public Nuisance as a Mass Products Lia *444 bility Tort, 71 U. Cin. L. Rev. 741, 790-91, 794 (2003)). In its earliest form, nuisance was a criminal writ used to prosecute individuals or require abatement of activities considered to “be ‘nocumentwm iniuriou-sum propter communem et publicam uti-liatem ’ — a nuisance by reason of the common and public welfare.” Gifford, 71 U. Cin. L. Rev. at 793-94 (citing Henry de Bracton, 3 Bracton on the Laws and Customs of England 191, f. 232b (Samuel E. Thorne ed., 1977)). Public nuisance, or common nuisance as it originally was called, was “an infringement of the rights of the Crown.” 4 Restatement (Second) Torts § 821B, cmt. a at 87 (1979). Although the earliest cases involved encroachments on the royal domain, public nuisance law evolved to include “the invasion of the rights of the public.” Id.

By the fourteenth century, courts began to apply public nuisance principles to protect rights common to the public, including “roadway safety, air and water pollution, disorderly conduct, and public health * * *.” Faulk & Gray, 2007 Mich. St. L. Rev. at 951. Nuisance became a “flexible judicial remedy'’ that allowed courts to address conflicts between land use and social welfare at a time when government regulations had not yet made their debut. Id.

It was not until the sixteenth century that the crime of public nuisance largely was transformed into the tort that is familiar in our courts today. Faulk & Gray, 2007 Mich. St. L. Rev. at 952. However, additional parameters were necessary to limit the reach of the new tort. A private party seeking to bring a public nuisance claim was required to demonstrate that he or she had “suffered a ‘particular’ or ‘special’ injury that was not common to the public.” Id.; see also 4 Restatement (Second) Torts § 821B, cmt. a at 87-88 (explaining that public nuisance had remained a crime until the sixteenth century, when it first was determined that a private individual, suffering a particularized harm different in kind from that suffered by the public, had the right, in tort, to recover damages for his injury).

Ultimately, “[a]t common law public nuisance came to cover a large, miscellaneous and diversified group of minor offenses * * 4 Restatement (Second) Torts § 821B, cmt. b at 40. Notably, all these offenses involved an “interference with the interests of the community at large — interests that were recognized as rights of the general public entitled to protection.” Id.

Public nuisance as it existed in English common law made its way to Colonial America without change. Faulk & Gray, 2007 Mich. St. L. Rev. at 953. In time, public nuisance became better known as a tort, and its criminal counterpart began to fade away in American jurisprudence. As state legislatures started enacting statutes prohibiting particular conduct and setting forth criminal penalties there was little need for the broad, vague, and anachronistic crime of nuisance. 4 Restatement (Second) Torts § 821B, cmt. c at 88.

The criminal origins of public nuisance in Rhode Island still can be found in statutes designating certain criminal activities and the places in which they are conducted as “common nuisances.” See, e.g., G.L. 1956 § 11-30-2 (defining the unlicensed manufacture or distribution of intoxicating liquor as a common nuisance); § 11-30-12 (defining slaughterhouses, rendering plants, garbage plants, and brick kilns as common nuisances if located within 300 feet of any public park or public hospital); § 11-30-13 (defining the burning of decaying and waste substances as a nuisance); G.L. 1956 § 21-28-4.06 (defining certain facilities used in the distribution of illegal drugs as common nuisances); G.L. 1956 *445 § 41-5-20 (defining unauthorized boxing matches as common nuisances).

2

Public Nuisance in Rhode Island

As the law of public nuisance began to take hold in Rhode Island, it reflected the principle “so long ago laid down by Lord Holt, that ‘in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to the said law.’ ” Aldrich v. Howard, 7 R.I. 199, 213 (1862) (quoting Couch v. Steel, 3 Ellis and Blackburn, (77 Eng. C.L.R.) 411). Some of Rhode Island’s earliest cases involved activities designated as “common nuisances” by the General Assembly. Those cases recognized that “ ‘a public nuisance becomes a private one to him who is specially and in some particular way inconvenienced thereby * * *.’ ” State v. Keeran, 5 R.I. 497, 511 (1858). See also State v. Paul, 5 R.I. 185, 194 (1858) (an action for abatement of a public nuisance may be brought “by those who are specially injured or obstructed”).

In Rhode Island, actions to abate public nuisances originally were brought in the form of an indictment. Keeran, 5 R.I. at 511; Paul, 5 R.I. at 194. Today, the state Attorney General is empowered to bring actions to abate public nuisances. See G.L. 1956 § 42-9-2 (vesting the Attorney General with the power to commence a public nuisance suit) and G.L. 1956 § 10-1-1 (providing that “[wjhenever a nuisance is alleged to exist, the attorney general * * * may bring an action in the name of the state * * * to abate the nuisance”).

Public nuisance long has been recognized as a legally viable cause of action in Rhode Island. See J.S. Thornton & Co. v. Smith Grant & Co., 10 R.I. 477, 483 (1873) (“The law [of public nuisance] as declared in the English cases has been recognized by the courts of this country * * *.”). Over centuries, this Court has taken careful steps to refine the common law definition of public nuisance to reflect societal changes. We are cognizant of the fact that the common law is a knowable judicial corpus and, as such, serves the important social value of stability; although the common law does evolve, that evolution takes place gradually and incrementally and usually in a direction that can be predicted. See Wheaton v. Peters, 33 U.S. (8 Peters) 591, 671, 8 L.Ed. 1055 (1834) (“[a] great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption”); see also John T. Loughran, Some Reflections on the Role of Judicial Precedent, 22 Fordham L. Rev. 1, 3 (1953) (noting that “[t]he common law has been able to maintain its preeminent place over the centuries because of its stability and its inherent capacity for keeping pace with the demands of an ever-changing and ever-growing civilization”). In so evolving, the law reflects, inter alia, the “felt necessities of the time, the prevalent moral and political theories, [and the] intuitions of public policy * * Holmes, The Common Law at 1. Although we recognize the need for such incremental changes, 16 like most courts, we are “partic *446 ularly loath to indulge in the abrupt abandonment of settled principles and distinctions that have been carefully developed over the years.” Loughran, 22 Fordham L. Rev. at 8.

This Court has defined public nuisance as “an unreasonable interference with a right common to the general public.” Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I.1980). See also Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I.1994). “[I]t is behavior that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community.” Citizens for Preservation of Waterman Lake, 420 A.2d at 59 (citing Copart Industries, Inc. v. Consolidated Edison Company of New York, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968, 971 (1977)). Put another way, “public nuisance is an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all.” Iafrate v. Ramsden, 96 R.I. 216, 222, 190 A.2d 473, 476 (1963) (citing Prosser, Torts, ch. 14, § 71 at 401 (2d ed. 1955)).

Although this Court previously has not had the opportunity to address all the elements of public nuisance, to the extent that we have addressed this common law cause of action, our definition largely is consistent with that of many other jurisdictions, the Restatement (Second) of Torts, and several scholarly commentators.

The Restatement (Second) defines public nuisance, in relevant part, as follows:

“(1) A public nuisance is an unreasonable interference with a right common to the general public.