Brenner v. Am. Cyanamid Co. - 263 A.D.2d 165, 699 N.Y.S.2d 848 (App. Div. 4th Dept. 1999)

Rule:

Application of the market share theory is inappropriate in lead poisoning cases because lead pigments other than white lead carbonate were used in lead-based paint; white lead carbonate was used for products other than interior residential paint; plaintiffs cannot determine when the lead-based paint was applied; lead pigments are found in products other than lead-based paint; lead-based paint is not fungible; the manufacturers of white lead carbonate were not in exclusive control of the risk posed by lead-based paint; there is no signature injury associated with lead poisoning; and there is no indication by the Legislature that there should be a remedy for lead poisoning to plaintiffs.

Facts:

Plaintiffs, Richard K. Brenner and Terry L. Brenner, sued on behalf of their child, alleging that the latter became ill after ingesting lead-based paint chips and inhaling dust from deterioration of lead-based paint applied to the walls of their residence. The named defendants were manufacturers of white lead carbonate from 1926, when the house was built, until 1955, when it was no longer sold for interior residential use. Plaintiffs alleged negligence and strict products liability but were unable to identify the manufacturer of the white lead carbonate, and so asserted three theories of collective liability: enterprise liability, market share liability, and alternative liability. Defendants moved for partial summary judgment dismissing the causes of action alleging collective liability against them, which the court granted in part, dismissing the allegations of enterprise liability and alternative liability but denying the allegations of market share liability. The defendants appealed, questioning whether a market share theory for determining liability and apportioning damages should apply where identification of the manufacturer could not be ascertained.

Issue:

Should the market share theory of liability apply in the instant case, notwithstanding the fact that the manufacturer of the lead pigment whose product allegedly caused the lead poisoning cannot be ascertained?

Answer:

No.

Conclusion:

The court concluded that the application of the market share theory of liability was inappropriate because, inter alia, there was no indication by the Legislature that there should be a remedy for lead poisoning to plaintiffs. According to the court, a market share theory for determining liability and apportioning damages would not apply to a lead poisoning case in which the identification of the manufacturer of lead pigment whose product allegedly caused the lead poisoning cannot be ascertained. Plaintiffs, who moved into the subject apartment in 1992, were unable to ascertain when the house was painted, what brand of paint was used, or which defendant manufactured the toxic lead pigment that was used in the paint. Further, in lead poisoning cases, a national market was not easily defined. Defendants here manufactured white lead carbonate, but there were other identifiable lead compounds found in the paint in plaintiffs' apartment that may have been manufactured by others not named in the present litigation. Applying market share liability under these circumstances would result in liability disproportionate to the risk created. Furthermore, the inability to identify a narrow time period in which to apply the market share theory, the absence of a fungible product, and the absence of a signature injury also militate against extending the market share theory to lead poisoning cases. Accordingly, the order was modified by granting defendants' motions for partial summary judgment in their entirety.