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5 - Expanding Public Nuisance Doctrine: Defenses

Published online by Cambridge University Press:  02 November 2023

Linda S. Mullenix
Affiliation:
University of Texas, Austin
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Summary

Chapter 5 turns to a description of the array of common law and statutory defenses that defendants who are sued for public nuisance claims have used in response to litigation. The chapter surveys several conventional tort defenses to public nuisance claims such as lack of causation, lack of proximate causation, failure to define an injury to a common public right, lack of unreasonable interference with a public right, remoteness, lack of standing, economic loss rule, municipal recovery rule, compliance with regulatory rules and standards, federal preemption, federal displacement, the learned intermediary, third party intervention, unconstitutional vagueness, statutes of limitation, violation of the dormant Commerce Clause, and the Eleventh Amendment. In addition, defendants have argued that individual claimants have failed to satisfy the special injury rule that might entitle them to compensatory damages. The chapter evalutes judicial discussion of these defenses and notes cases in which courts have found several defenses to be inapplicable, or overcome by the plaintiffs factual pleadings.

Type
Chapter
Information
Public Nuisance
The New Mass Tort Frontier
, pp. 90 - 113
Publisher: Cambridge University Press
Print publication year: 2023

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