Thomas v. Mallett - 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523

Rule:

Although Wis. Const. art. I, § 9 does not guarantee the certainty of recovery, it cannot be turned on its head such that it becomes a vehicle to defeat the plaintiff's right to recovery for wrongs committed by one simply because some recovery has already been had against another. Art. I, § 9 is not a shield against liability in this sense.

Facts:

14-month old J. Steven Thomas, through his guardian ad litem, claimed that he sustained lead poisoning by ingesting lead paint from accessible painted surfaces, paint chips, and paint flakes and dust at two different houses he lived in during the early 1990’s. Consequently, Thomas instituted a complaint against defendant 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. 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 the risk-contribution theory announced in Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984). The court of appeals also concluded that Thomas could not proceed on his claims of civil conspiracy and enterprise liability. On appeal, Thomas argued that the court of appeals erred in its decision because although he received a remedy from his landlords for their negligence, Article I, Section 9 of the Wisconsin Constitution did not foreclose his seeking a remedy for the Pigment Manufacturers separate wrong for producing and promoting toxic lead pigments. Thomas further averred that Collins' risk-contribution theory should be recognized for white lead carbonate claims

Issue:

If a plaintiff already received a remedy from his landlords for their negligence in failing to abate lead paint hazards, was plaintiff barred from pursuing claims against the lead pigment manufacturers?

Answer:

No.

Conclusion:

The court reversed in part and extended the Collins' risk-contribution theory to white lead carbonate claims. According to the Court, Wis. Const. art. I, § 9 applied not only when a plaintiff was without a remedy; rather, it allowed a court to fashion an adequate remedy when one did not exist. There was no dispute that the minor was an innocent plaintiff who would be forced to bear a significant cost of his injuries if not allowed to sue the possibly negligent manufacturers, and it was clear that the manufacturers contributed to the risk of injury to the minor. Also, the factual circumstances of physical interchangeability that were present were sufficiently similar to remain within Collins' confines in that white lead carbonates were produced utilizing virtually identical chemical formulas such that all white lead carbonates were identically defective.