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The theory of alternative liability dictates that tortfeasors who act in concert will be held jointly and severally liable for the plaintiff's injury unless the tortfeasors are able to prove that they have not caused the harm.
Appellants, Dominique Skipworth ("Skipworth"), her legal guardian, Williams, and her co-legal guardian and mother, Ernestine Richardson, filed an action against several manufacturers of lead pigment ("the pigment manufacturers") and their alleged successors as well as a trade association, Lead Industries Association, Inc. ("LIA"), for lead poisoning from the lead in Skipworth’s home. Skipworth could not identify the manufacturer or when the pigment was made, sold, or applied to the home. Skipworth invoked market share liability, alternate liability, conspiracy, and concert of action. The trial court granted, and the superior court affirmed, LIA’s motion for summary judgment.
Should market share liability be applied as an alternate liability theory?
The court held that adoption of market share liability would be inappropriate as it would grotesquely distort liability of a manufacturer. The court held that alternate theory was also inapplicable because LIA did not act simultaneously in producing the lead paint and that Skipworth failed to join in all potential tortfeasors over the 100-year period. The court stated that Skipworth also failed to support their cause of action for civil conspiracy or concert of action because they were unable to identify the manufacturer of lead pigment found at Skipworth’s home that was ingested and caused her injuries.