COVID-19 has resulted in illness, injury, and financial destruction on a scale unseen in the United States since the 1918 flu pandemic. As a consequence, courts will inevitably be called upon to sort out huge numbers of COVID-19 claims. While some plaintiffs will seek damages for contract breaches and ordinary business torts, others will likely seek compensation through more creative, less common mechanisms such as public nuisance claims.
This edition of ILR Briefly includes insights into the history and recent practice of public nuisance, including the tort’s roots in 12th century English law, its evolution over time, and the significant shifts in practice that have occurred in recent years as plaintiffs’ lawyers and issue activists attempt to harness the tort for the dual purposes of making a profit and changing policy, while circumventing the legislative process. The paper foreshadows how COVID-19 may yet become a major target for the nascent public nuisance bar and makes the argument why such claims should be subject to dismissal.