Thomas v. Mallett

No. 03AP1528 (Wis. Sup. Ct. July 15, 2005) ; Clearinghouse Number: 55844

Description

Where Plaintiff Cannot Identify Paint Manufacturer Responsible for Harm, Wisconsin Supreme Court Extends “Risk Contribution” Theory of Liability to Lead Poisoning

Abstract

The Wisconsin Supreme Court allowed plaintiff, a minor with elevated blood lead levels due, he alleged, to ingestion of paint chips, to proceed to trial against defendant pigment manufacturers under Wisconsin’s “risk contribution” theory of negligence. Although plaintiff could not determine which defendant, if any, made the white lead carbonate in the paint he took into his system, under Collins v. Eli Lilly Company, 342 N.W.2d 37 (1984), cert. denied sub nom. E.R. Squibb & Sons v. Collins, 469 U.S. 826 (1984), the court reversed the lower court’s granting of summary judgment to defendants. In Collins the court said that a state constitutional provision gave it “the ability to create an adequate remedy when one did not exist.” Here the court said that the same policy reasons warranted extending the risk contribution theory: each defendant contributed to the risk of injury and thus shared culpability, and defendants were in a better position than plaintiff to absorb the cost. Although plaintiff had obtained recovery from landlords and therefore was not deprived of a remedy, the court said that the state constitution guaranteed an adequate remedy; it expressed “serious concern” with defendants’ ”attempt to displace all of the blame for lead poisoning … on landlords.” Defendants contended that the extended time span during which the paint that allegedly injured plaintiff could have been applied—from 1900 and 1905 when the houses in question were built until a ban on lead paint in 1978—denied them any reasonable ability to exculpate themselves, but the court characterized this as an argument that “their negligent conduct should be excused because they got away with it for too long.” The court rejected plaintiff’s theories of enterprise liability and civil conspiracy, found defendants’ constitutional claims premature, and remanded the case for trial.

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Docket Date
2005-07-15 00:00:00+00:00

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