Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Could “Public Nuisance” Claims by Private Plaintiffs Foster an Alternate Tort Universe in Minnesota?

Tort law has customarily lived within certain ancient confines, such as the familiar duty, breach, proximate causation and injury elements of a negligence claim. But what if plaintiffs could opt for an alternate tort universe where the time-honored limits to negligence and intentional tort claims did not apply? The potential for such a regime may have developed in recent Minnesota district court decisions.

Tort law has customarily lived within certain ancient confines, such as the familiar duty, breach, proximate causation, and injury elements of a negligence claim. So-called “tort creep” has sometimes made these elements easier to meet, but torts remained corralled within the elements at some level.

What if plaintiffs could opt for an alternate tort universe where the time-honored limits to negligence and intentional tort claims did not apply? The potential for such a regime, at least where a pattern of incidents can be alleged, may have developed in recent Minnesota district court decisions regarding attempts by private individuals to plead “public nuisance” claims against church-related entities based on instances of clergy sexual abuse of minors. If an institution is determined to be a “public nuisance,” there may be no specific duty or standard of care requirements to limit the types of plaintiffs who might bring claims against it. A wider range of plaintiffs might have the potential to collect damages, and the public nuisance claim could be used as a basis for far-ranging discovery. Finally, a public nuisance claim can be a source of ongoing judicial oversight and supervision, where a conventional tort case ends with a final judgment.

A tort without concrete elements

A notoriously indefinite tort, “public nuisance” has simply been defined as “an unreasonable interference with a right common to the general public.”1 A public nuisance typically involves conduct that interferes with public health or safety, violates statutes or regulations, and has long lasting effect upon a public right. This definition contains no concrete elements or standards. Eschewing customary studied Anglo understatement, a recent article in the Cambridge Law Journal introduced the subject by stating, “[t]he tort of public nuisance has been described as a ‘strange’ ‘amorphous and unsatisfactory area of the law’ that suffers from a ‘schizophrenic nature’ which makes the task of defining it ‘nigh-on impossible.’  In fact, it has almost become trite to disparage its lack of coherence. [footnotes omitted]”2

A Minnesota criminal statute defines a public nuisance as any condition that “unreasonably annoys, injures or endangers the safety, health, morals, comfort or repose of any considerable number of members of the public…”3 Some courts have looked to this definition in treating civil private causes of action for public nuisance.4 In any event, the cause of action remains nebulous, and traditional rules on standing, which limited prosecution of public nuisance claims to public authorities in most instances, restrained the development of the tort both in terms of number of cases and refining of its elements.

Clergy abuse cases prompt creative new theories

After Minnesota’s Child Victims Act revived many previously time-barred causes of action by sexually abused minors, plaintiffs looked for means to establish causes of action against institutions where vicarious liability was not available and negligence on the part of the supervisor with respect to the proclivities of a particular offender was difficult to establish.5 One such method was to plead public nuisance claims against church entities whose clergy had sexually abused minors. Although precise theories varied, it was alleged that church entities had failed to disclose the dangers of clergy abuse, which allowed offending clergy to live freely in the community, making church facilities unreasonably dangerous, causing fear, and violating a public right.

An initial gatekeeper issue has been whether freedom from fear of the danger of sexual abuse is a cognizable “public right” for purposes of determining whether a public nuisance exists. Judge Guthmann of Ramsey County explored this issue in detail in Doe 30 v. Diocese of New Ulm et al. and concluded that such a freedom might indeed be depicted as a right of the general public as opposed just to individuals.6 Defendants have not gotten further traction on this issue in clergy abuse cases.7

A split in authorities on standing

Between 2014 and 2016, the issue of whether private individuals who were victims of sexual abuse had standing to bring public nuisance claims was the source of constant dispositive motion practice before Minnesota state trial courts. As luck would have it, a complete standoff between district courts resulted, with over 10 decisions evenly split.8

To have standing to bring an individual claim of public nuisance, “one must have suffered harm of a kind different from that suffered by other members of the public.”9 Otherwise, “[r]edress of the wrong to the entire community is left to its duly appointed representatives.”10 A harm simply different in degree is not considered different in kind from the injury suffered by the general public.11

Minnesota’s district courts have struggled with this elusive “in kind versus in degree” distinction in treating public nuisance claims by private individuals who suffered abuse by clergy. Several courts have determined that, to the extent that the injury to the general public is increased anxiety over sexual abuse, the injury is the same in kind as that suffered by an individual plaintiff abuse victim who worries about abuse, even if the individual’s anxiety is greater in degree.12 Similarly, it has been reasoned that if the nuisance is an increased risk that children will be molested and the plaintiff is an individual who was molested due to this increased risk, the alleged harm is the same.13

Other courts, however, have found that the possible pecuniary damages suffered by an abuse victim, such as treatment expenses or lost earnings potential, constitute injuries that are different in kind from those suffered by the general public.14 In at least one instance, this theory was conditioned on eventual proof by plaintiff that he suffered pecuniary loss from mental trauma that resulted from learning that the church had concealed instances of abuse as opposed to trauma from the abuse itself.15 Hence, the district courts have been truly splitting hairs. In any event, the drama playing out in Minnesota has caught the attention of plaintiffs’ counsel in other states, where complaints alleging sexual abuse are starting to include public nuisance claims against the entities employing the alleged abuser.16

Implications beyond sexual abuse cases

Bankruptcies of religious entities and settlements have prevented issues arising from private causes of action for public nuisance by clergy abuse victims from reaching Minnesota’s appellate courts, in spite of the large number of trial courts that have grappled with the issues.17 Hence, the situation remains murky, particularly on the issue of standing. The issue has implications far beyond clergy abuse cases.

The standing limitation has traditionally confined public nuisance claims to instances where public authorities see fit to prosecute. Creative theories that open the possibility of such claims for private plaintiffs may have onerous implications for school districts or businesses and not just in the context of sexual abuse.18 In any event, the creative and sometimes successful utilization of public nuisance counts in clergy abuse cases has caught the attention of lawyers representing tort plaintiffs in other contexts, and pitched battles with high stakes over heretofore unorthodox use of this tort are sure to follow.

JONATHAN F. MACK is a partner in the complex litigation group at Hellmuth & Johnson PLLC.  In addition to his business litigation practice, he has defended numerous recent institutional sexual abuse cases revived under Minnesota’s Child Victim Act.


1 Restatement (Second) Torts § 821B(1).

2 J.W. Neyers, Reconceptualising the Tort of Public Nuisance, 76 C.L.J. 87 (2017)

3 Minn.Stat. §609.74.

4 North Star Legal Foundation v. Honeywell Project, 355 N.W.2d 186, 189 (Minn. Ct. App. 1984).

5 Minn.Stat. §541.073.

6 Doe 30 v. Diocese of New Ulm, No. 62-CV-14-871, slip op. 8/6/2014 (Minn Dist. Ct. Ramsey Co.)

7 Some other states have not been receptive to the theory endorsed by Judge Guthmann in Doe 30. Rhode Island v. Lead Industries Assoc., 951 A.2d 428, 447, 452-58 (R.I. 2008)(no public right not to be poisoned by lead paint); City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 358-61, 371-75, 821 N.E.2d 1099, 1107-08, 1114-16 (2005)(no authority for expanding concept of a public right to include freedom not to be subjected to firearm violence).

8 Decisions dismissing public nuisance claims have included: Doe 40 v. Order of St. Benedict, No. 73-CV-14-7950, slip op. 2/24/2015 (Minn. Dist. Ct. Stearns Co.); Doe 30 v. Diocese of New Ulm, No. 62-CV-14-871, slip op. 8/6/2014 (Minn Dist. Ct. Ramsey Co.); Doe 19 v. Diocese of Crookston, No. 44-CV-14-140, slip op. 7/30/2014 (Minn. Dist. Ct. Mahnomen Co.); Doe 5 v. Diocese of Duluth, No. 69DU-CV-13-1654 and 69DU-CV-13-2995, slip op. 3/17/2014 (Minn. Dist. Ct. St. Louis Co.); Doe 6 & 7 v. Diocese of New Ulm, No. 08-CV-13-810, slip op. 2/10/2014 (Minn. Dist Ct. Brown Co.); Doe 4 v. Diocese of Crookston, No. 60-CV-13-1261, slip op. 1/6/2014 (Minn. Dist. Ct. Polk Co.). Decisions upholding public nuisance counts have included: Doe 65 v. Diocese of St. Cloud, No. 73-CV-15-7611, slip op. 4/1/2016 (Minn. Dist. Ct. Stearns Co.); Doe 50 v. Diocese of St. Cloud, No. 73-CV-15-276, slip op. 5/22/2015 (Minn. Dist. Ct. Stearns Co.); Doe 37 & 38 v. Diocese of New Ulm, No. 08-CV-14-863, slip op. 3/27/2015 (Minn. Dist. Ct. Brown Co.); Doe 1 v. Archdiocese of St. Paul and Minneapolis, No. 62-CV-13-4075, slip op. 9/2/2014 (Minn. Dist Ct. Ramsey Co.); Doe 16 v. Diocese of Winona, No. 85-CV-13-1855, slip op. 4/22/2014 (Minn. Dist. Ct. Winona Co.).

9 Restatement (Second) Torts § 821C.

10 Id. at comment a. See Hill v. Stokeley-Van Camp, Inc., 260 Minn. 315, 109 N.W.2d 749, 753 (1961), citing Aldrich v. Wetmore, 52 Minn. 164, 53 N.W. 1072, 1073 (1893); State v. Sportsmen’s Country Club, 214 Minn. 151, 7 N.W.2d 495, 497 (1943) (“As a public nuisance concerns the public generally, it is the duty of the government to take measures to abate or enjoin it.”).

11 E.g. Erspamer v. Oliver Iron Mining Co., 179 Minn. 475, 229 N.W. 583, 584 (1930).

12 E.g. Doe 4 v. Diocese of Crookston, No. 60-CV-13-1261, slip op. 1/6/2014 at 9-10 (Minn. Dist Ct. Polk Co.).

13 Doe 6 & 7 v. Diocese of New Ulm, No. 08-CV-13-810, slip op. 2/10/2014 at 10(Minn. Dist Ct. Brown Co.).

14 Doe 50 v. Diocese of St. Cloud, No. 73-CV-15-276, slip op. 6/22/2015 at 7-9 (Minn. Dist. Ct. Stearns Co.).

15 Doe 37 & 38 v. Diocese of New Ulm, No. 08-CV-14-863, slip op. 3/27/2015 at 14 (Minn. Dist. Ct. Brown Co.).

16 E.g., Monaghan v. Roman Catholic Diocese of Rockville Centre, No. 600406/15, slip op. 12/2/2015 (N.Y. Sup. Ct. Nassau Co.)(allegations that plaintiff sustained pecuniary loss via medical expenses or wage loss as well as emotional injury and anger from guilt over abuse that could be perpetrated by unidentified abusers were sufficient to establish harm of a different kind at the pleading stage); McArthur v. Boy Scouts of America, No. SU17-CV-0506 (Ga. Super. Ct. Athens-Clarke Co.)(Complaint); Roe 45 v. Catholic Foreign Mission Society, No. 16-1-0672-04 VLC (Haw. Cir. Ct. 1st Cir.)(Complaint).

17 In a recent decision outside the clergy abuse context, the Court of Appeals held that a plaintiff homeowner lacked standing to assert a public nuisance claim against an adjacent homeowner who disturbed putatively contaminated soil between their homes because plaintiff did not allege a special or peculiar damage not common to the general public.  Moore v. Fletcher, 2017 Minn. App. Unpub. LEXIS 777, *6 (9/5/2017).  As an unpublished opinion treating an idiosyncratic pro se complaint, Moore may not offer a firm indication as to how the appellate courts would digest the standing issues raised in the rash of clergy abuse trial court decisions.

18 See Tioga Public School District #15 of Williamson County v. United States Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993)(stating that nuisance law cannot be permitted to “become a monster that would devour in one gulp the entire law of tort…”); J.R. Spencer, Public Nuisance: A Critical Examination, 48 C.L.J. 55 (1989)(“With such a broad concept in existence, backed with such broad remedies, what need have we of any other…torts…?”).

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