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Duff: Workers Win Preliminary Injunction on Public Nuisance Theory

By Michael C. Duff

Thursday, June 25, 2020 | 0

All the stars aligned for a worker-filed a public nuisance suit — at least, chapter one of the suit — the most important of which were probably that the case was brought in a California state court and involved California code law rather than the common law of public nuisance torts.

Michael C. Duff

Michael C. Duff

It is also notable that the suit did not involve McDonald’s corporate (or its lawyers). In short, the state court mandated a McDonald’s franchisee to take OSHA-like remedial measures to make its restaurant safer from COVID-19.

This was another case in which plaintiffs were restaurant workers and (a 10-month old child of one of the workers was also a plaintiff). Plaintiffs, in addition to seeking injunctive relief, demanded compensatory damages. I note that the preliminary injunction was granted “in part,” so I am not clear which portion of the injunction was denied.

The dance in the case will be the attempt to not characterize the compensatory damages sought as negligence so as to bring them within the workers’ compensation exclusivity bar.

In addition to public nuisance injunctive relief and compensatory damages, plaintiffs seek compliance with Oakland sick leave ordinances and a finding of the commission of unfair and unlawful business practices under Cal. Bus. & Prof. Code Sections 17200, et seq. As remedies for those violations, plaintiffs seek “disgorgement of profits, interest, penalties, attorneys’ fees and expenses pursuant to Code of Civil Procedure Section 1021.5, and costs of suit.”

Unfortunately, the judge’s decision contains little analysis, so I am unable to parse its rationale. From a distance, however, I note that “[u]nder California law, a nuisance is defined as ‘[a]nything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

Moreover, “[a] public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” The complaint must allege damages “specially injurious to [plaintiff], but not otherwise.”

As I have mentioned in prior posts, under the common law an injunction for public nuisance cannot lie unless the petitioner is eligible to recover damages, has authority as a public official or public agency to represent the state or a political subdivision in the matter, or has standing to sue as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action.

The restatement also recites that “[i]t has been the traditional rule that if a member of the public has not suffered damages different in kind and cannot maintain a tort action for damages, he also has no standing to maintain an action for an injunction.”

Under the common law, the difficulty here would be whether the plaintiffs have suffered COVID-19 injuries (or imminent threats thereof) different in kind (not extent) from the general public. To complicate matters, the nuisance in question is partially anticipatory.

“The doctrine of anticipatory nuisance is brought into focus normally when a moving party is seeking to prevent commencement of what is alleged will become a nuisance.” The doctrine “has existed under the common law for many years ... [but] is under-utilized because of the high burden of proof (e.g., reasonable certainty or high probability) ... normally set.” (See page 688 here).

What makes these public nuisance cases so interesting is that any underlying tort/negligence/nuisance damages would seem to be instantly subsumed by workers’ compensation exclusivity. But we simply do not seem to have cases on the books challenging exclusivity in circumstances where only injunctive relief is sought. There would have been no substantial incentive to pursue such actions in the past.

And however this case might come out under the common law, I am not a California lawyer. As we all know, California law (especially tort law, as my students will attest) is often different.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.


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