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Pollard v. Sherwin-Williams Co.9/6/2005
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED-09/06/2005
BEFORE BRIDGES, P.J., CHANDLER, AND ISHEE, JJ.
. The minor plaintiff and his mother filed suit alleging that the child had been injured by ingesting the defendant manufacturer's lead-based paint. The trial court granted summary judgment in favor of the defendant. Finding no error as to the statute of limitations issue, we affirm.
STATEMENT OF FACTS
. This appeal involves injuries allegedly caused by exposure to lead-based paint in a house built in the early 1930s in Fayette, Mississippi. By the early to mid-1970s, the house was occupied by Johnny Crawford (Crawford) and Doris Gaines (Gaines). The plaintiff, Shermeker Pollard (Pollard), was living in the house in 1991 when she gave birth to her son, the minor plaintiff, Trellvion Gaines (Trellvion). Pollard and Trellvion continued to live in the house until it was destroyed by fire in 1994.
. The house was allegedly painted by Gaines and a local house painter on four separate occasion between 1974 and 1994. As a result, Pollard filed an initial complaint against Sherwin-Williams in November 2000, on her own behalf, and on behalf of her minor child, Trellvion. Pollard and Trellvion subsequently filed two amended complaints which alleged that Sherwin-Williams was liable for damages caused by exposure to lead-based paint. Pollard and Trellvion's second amended complaint alleged that Trellvion was exposed to lead dust, chips, and other debris which resulted from the sanding, scraping, and other removal of lead paint from the house which occurred based on the required procedure for application of Sherwin-Williams's non-lead-based paint. The complaint further alleged that Pollard suffered mental anguish in addition to the expense of medical treatment for her son. Pollard and Trellvion alleged that Sherwin-Williams was liable under theories of strict liability, negligence, and fraudulent concealment and misrepresentation.
. The parties subsequently agreed to the appointment of a special master, who concluded that Sherwin-Williams's motion for summary judgment should be granted. The circuit court adopted the special master's report and recommendations, and granted summary judgment in favor of Sherwin-Williams.
Pollard and Trellvion's motion to reconsider was denied, and in June 2003, the circuit court entered an order of dismissal with prejudice against Pollard and Trellvion.
. Aggrieved by the trial court's ruling, Pollard and Trellvion appeal asserting the following: (1) whether the trial court erred in granting Sherwin-Williams's motion for summary judgment; (2) whether the trial court erred in finding that Sherwin-Williams owed no duty to warn under Mississippi law of the dangers associated with surface preparation on its non-lead-based paint cans when it was foreseeable that lead paint may be scraped off in preparation for applying non-lead-based paint; (3) whether the trial court erred in finding that state common law was preempted by the Federal Hazardous Substance Act; (4) whether the trial court erred in finding that Sherwin-Williams's lead-based paint was not defectively designed; and (5) whether the trial court erred in finding that Pollard and Trellvion's claims were barred by the statute of limitations.
ISSUES AND ANALYSIS
I. Whether the Trial Court Erred in Finding that the Claims were Barred by the Statute of Limitations
. We begin our discussion by addressing the threshold issue of the statute of limitations. When analyzing a statute of limitations issue, the initial determination must resolve the question of wh
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