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Thomas v. Mallett

Supreme Court of Wisconsin

February 1, 2005, Oral Argument ; July 15, 2005, Opinion Filed

No. 2003AP1528


 [*P1]  [**244]  [***527]    LOUIS B. BUTLER, JR., J. Steven Thomas, by his guardian ad litem, seeks review of a published court of appeals decision 1 that 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, American Cyanamid Co., Atlantic Richfield Co., ConAgra Grocery Products Co., E.I. DuPont De Nemours and Comp., NL Industries, Inc., SCM Chemicals, Inc., and Sherwin-Williams Co. (collectively "Pigment Manufacturers").  [**245]  The court of appeals concluded that because Thomas had a remedy [****5]  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. The court of appeals also concluded that Thomas could not proceed on his claims of civil conspiracy and enterprise liability.

 [*P2]  Thomas argues this court should reverse the court of appeals' decision because (1) although he received a remedy from his landlords for their negligence, Article I, Section 9 of the Wisconsin Constitution does not foreclose his seeking a remedy for the Pigment Manufacturers separate wrong for producing and promoting toxic lead pigments; (2) Collins' risk-contribution theory should be recognized for white lead carbonate claims; and (3) he has presented sufficient material facts to warrant a trial on his alternative theories of liability of civil conspiracy and enterprise liability.

 [*P3]  We agree with Thomas [****6]  that Article I, Section 9 does not insulate wrongdoers from liability simply because recovery has been obtained from an altogether different wrongdoer for an altogether different wrong. We also conclude that the white lead carbonate claims at issue in this case are factually similar enough to Collins to warrant extension of the risk-contribution theory. However, we do not agree that Thomas has presented sufficient material facts to warrant a trial on his civil conspiracy and enterprise liability claims. Therefore,  [***528]  we affirm in part and reverse in part the court of appeals' decision. 2

 [**246]  I

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2005 WI 129 *; 285 Wis. 2d 236 **; 701 N.W.2d 523 ***; 2005 Wisc. LEXIS 397 ****

Steven Thomas, a Minor, by his Guardian ad Litem, Susan M. Gramling, Plaintiff-Appellant-Petitioner, v. Clinton L. Mallett, Billie R. Mallett, and Germantown Mutual Insurance Co., Defendants, American Cyanamid Co., Atlantic Richfield Co., E.I. DuPont De Nemours and Co., NL Industries, Inc., SCM Chemicals, Inc., Sherwin-Williams Co., ConAgra Grocery Products Co., Defendants-Respondents.

Subsequent History: Appeal after remand at Thomas v. Mallett, 2010 Wisc. App. LEXIS 1021 (Wis. Ct. App., Dec. 16, 2010)

Prior History:  [****1]  REVIEW of a decision of the Court of Appeals. Reported at:  275 Wis. 2d 377, 685 N.W.2d 791, 2004 WI App 131 (Ct. App. 2004-Published). Court: Circuit. County: Milwaukee. Judge: Timothy G. Dugan. (L.C. No. 99 CV 6411).

Thomas v. Mallett, 2004 WI App 131, 275 Wis. 2d 377, 685 N.W.2d 791, 2004 Wisc. App. LEXIS 492 (2004)

Disposition: Affirmed in part and reversed in part.


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Civil Procedure, Appeals, Standards of Review, De Novo Review, Discovery, Methods of Discovery, General Overview, Judgments, Summary Judgment, Summary Judgment Review, Standards of Review, Entitlement as Matter of Law, Supporting Materials, Discovery Materials, Constitutional Law, Bill of Rights, Fundamental Freedoms, Freedom to Petition, Governments, Courts, Authority to Adjudicate, Common Law, Judicial Precedent, Legislation, Effect & Operation, Operability, Real Property Law, Environmental Regulations, Torts, Products Liability, Interpretation, Landlord & Tenant, Landlord's Remedies & Rights, Attorneys, Fundamental Rights, Procedural Due Process, Procedural Matters, Multiple Defendants, Distinct & Divisible Harms, Commercial Law (UCC), Sales (Article 2), Form, Formation & Readjustment, Criminal Law & Procedure, Inchoate Crimes, Conspiracy, Elements, Concerted Action, Civil Conspiracy, Alternative Liability, Contribution, Joint & Several Liability, Theories of Liability, Negligence