2003AP1528 Thomas, a Minor, by his Guardian ad Litem, Gramling v. Mallett, et
al.
Lead
paint; risk-contribution theory
Wisconsin Supreme Court Reversed and Remanded
Even though a lead-paint plaintiff has recovered from the landlord, he can recover
from manufacturers under a risk-contribution theory.
Plaintiff Thomas, a minor, claims that he sustained lead poisoning by ingesting
lead paint from accessible painted surfaces, paint chips, and paint flakes and
dust at two different houses in Milwaukee he lived in during the early 1990s.
The circuit court granted defendants' motion for summary judgment. On review,
the Court of Appeals declined to extend the risk-contribution theory announced
in Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984), to the defendant-respondent
lead pigment manufacturers. The court of appeals concluded that because Thomas
had a remedy against his landlords for their negligence in failing to abate lead
paint hazards in his prior residences, there was no reason to extend Collins'
risk-contribution theory. In Collins, this court adopted the risk-contribution
theory, which relaxed the plaintiff's burden of proof in establishing causation
in her negligence and product liability claims. Providing defendants the ability
to prove their way out of liability "will result in a pool of defendants
which it can reasonably be assumed could have caused the plaintiff's injuries."
This procedure, however, was imprecise, as it could mean that some of the remaining
defendants may still be innocent. Nevertheless, this court accepted that possibility
"as the price the defendants, and perhaps ultimately society, must pay to
provide the plaintiff an adequate remedy under the law." For those defendants
that could not exculpate themselves, this court concluded that the application
of comparative negligence "provide[d] the most equitable means to assign
liability and apportion damages among the liable defendants. …. "We
have serious concerns with the Pigment Manufacturers' attempt to displace all
of the blame for lead poisoning from its white lead carbonate pigment on landlords
and what effect that will have on the adequacy of a plaintiff's remedy. Although
this court has held that 'a duty to test for lead paint arises whenever the landlord
of a residential property constructed before 1978 either knows or in the use of
ordinary care should know that there is peeling or chipping paint on the rental
property,' Antwaun, 228 Wis. 2d at 62, this court has also concluded that a pollution
exclusion in a commercial general liability insurance policy bars coverage for
lead poisoning from paint that has chipped, flaked, or broken down into dust or
fumes. Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 130, 596 N.W.2d
429 (1999). The result of Peace is that many victims of lead poisoning will be
deprived 'of an effective remedy for their harm.' Id. at 151 (Crooks, J., dissenting).
"While Thomas recovered from two of the landlords' insurers (Fire Insurance
Exchange and Germantown Mutual Insurance), the settlement with Fire Insurance
Exchange occurred three years before Peace was decided, and Germantown Mutual
Insurance Company apparently did not have a pollution exclusion, as it never raised
one. After Peace was handed down, however, the insurer for State Farm successfully
raised its pollution exclusion, which contained the same language considered in
Peace, and was dismissed from the suit. It is this latter occurrence that is troublesome,
as it highlights the emerging ramifications Peace holds for future victims of
lead poisoning. Those victims may not share Thomas's chance in being able to recover
something from their negligent landlords. …" Thomas also argues that
he should be able to present alternative theories of liability to the jury: specifically
enterprise liability and civil conspiracy. On this point, however, we agree with
the Pigment Manufacturers that the claims cannot be pursued. The decision of the
court of appeals is affirmed in part and reversed in part and remanded for further
proceedings consistent with this opinion. WILCOX, J. (DISSENTING): "It is
often said that bad facts make bad law. Today's decision epitomizes that ancient
legal axiom. The end result of the majority opinion is that the defendants, lead
pigment manufacturers, can be held liable for a product they may or may not have
produced, which may or may not have caused the plaintiff's injuries, based on
conduct that may have occurred over 100 years ago when some of the defendants
were not even part of the relevant market. Even though the injury in this case
is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result
of white lead carbonate, much less the type of white lead carbonate produced by
any of the respective defendants. More importantly, he cannot prove when the supposed
white lead carbonate that allegedly poisoned him was manufactured or applied to
the houses in which he was supposedly lead poisoned. However, none of these facts
seem to matter to the majority. …The majority seems content to run roughshod
over established principles of causation and the rights of each defendant to present
a defense and be judged based on its own actions. The majority's decision renders
Wisconsin the only state to apply some form of collective liability in lead paint
suits under similar facts. "While I recognize the validity of the risk-contribution
theory of recovery articulated by this court in Collins v. Eli Lilly Co., 116
Wis. 2d 166, 342 N.W.2d 37 (1984), under the unique facts of that case, I wholly
disagree with the majority's expansion of that theory to cover the present case.
Because this case is factually distinguishable from Collins on several levels,
the majority's expansion of Collins to this case is entirely inappropriate. Further,
by applying risk-contribution theory to the facts of this case, the majority essentially
adopts a version of risk-contribution theory explicitly rejected by the Collins
court." PROSSER, J. (DISSENTING): Four years ago the City of Milwaukee filed
suit against NL Industries, Inc. of Dallas, Texas, and Mautz Paint Company of
Madison, alleging that the companies were responsible for creating a public nuisance
in the City's old housing stock by marketing and selling substantial quantities
of lead pigments and/or lead-based paint. The City asked the two defendants to
pay the costs associated with its lead abatement program, which it estimated to
be more than one hundred million dollars. The circuit court dismissed the City's
claim for public nuisance, concluding that the City could not show that these
particular defendants caused their lead-based paint to be applied to any of the
specific buildings included in the alleged public nuisance. The court of appeals
reversed. The matter is now awaiting a decision by this court in the present litigation.
"In the meantime, Mautz Paint, a long-time Wisconsin corporation founded
in 1892, sold its business to Ohio-based Sherwin-Williams in November 2001. The
company cited financial pressure brought on by Milwaukee's lead paint lawsuit.
All Madison-based Mautz manufacturing has ceased. "The City of Milwaukee's
lead paint lawsuit provides us with a window to the future. When the court issues
its decision in this case, every person under the age of 20 who claims a lead
paint injury in Wisconsin will have a cause of action in our courts. Every person
in the United States who has a lead paint injury that could have come from a Wisconsin-based
company and can survive the limitations periods in his own state may have a cause
of action. Every municipality in this country that has a lead abatement program
and can make a plausible argument that Wisconsin-made lead paint or white lead
carbonate injured its residents may follow the City of Milwaukee and seek redress
in this state. Wisconsin will be the mecca for lead paint suits. There is no statute
of repose on products liability here, and this court has now created a remedy
for lead paint poisoning so sweeping and draconian that it will be nearly impossible
for paint companies to defend themselves or, frankly, for plaintiffs to lose.
"Because the majority opinion creates a cause of action that violates due
process of law, equal protection of the law, and nearly every principle of sound
public policy in tort cases, I dissent."
Court of Appeals, Milwaukee County, Dugan, J., Butler, J. Attorneys: For Appellant:
Peter G. Earle, Milwaukee; Robert J. McConnell, Providence, RI For Respondent:
Philip H. Curtis, Bruce R. Kelly, New York, NY; David G. Peterson, Michael B.
Apfeld, Milwaukee; William H. King, Jr., Steven R. Williams, Joy C. Fuhr, Richmond,
VA; M. Christine Cowles, Milwaukee; James P. Fitzgerald, John J. Schirger, Omaha,
NE; Paul Benson, Milwaukee; Susan McGuire, Washington, D.C.; Donald E. Scott,
Jennifer Heisinger, Elizabeth L. Thompson, Denver, CO; David G. Peterson, Michael
B. Apfeld, Milwaukee; Richard W. Mark, Elyse Echtman, New York, NY
http://www.wicourts.gov/sc/opinion/DisplayDocument.html?
content=html&seqNo=19032
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