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Thomas v. Mallett7/15/2005
covery anytime a plaintiff cannot satisfy the elements of his cause of action would essentially open the door for the abolition of all limitations on tort recovery.
Thus, Article I, Section 9 does not compel the court to allow recovery in any particular case or require a court to disregard traditional common-law limits on recovery in tort:
We started off in our legislative and judicial history with a very definite attitude that neither this particular article nor any other of our constitution had any such a sweeping away of and radical departure from many common-law principles and rules, many important ones of which . . . were more or less denials of or limitations upon what would be within the broad and general field embraced in the term "natural and proclaimed rights of the individual to life, liberty, and security in person, property, and character"----such, for instance, as the defense of absolute or conditional privilege in slander or libel; instances of injury to feelings alone; wrongs between parent and child; mere threats; the defenses in actions for malicious prosecution; the doctrines of contributory negligence in personal injury actions as well as in master and servant cases . . . . In all of the above situations, however severe the injuries might actually have been to person, property, or character, organized society had for a long time and has continued to refuse to recognize rights to legal redress.
Id. at 278.
The phrase "conformably to the laws" in Article I, Section 9 relates only "to a recognized, long established system of laws existing in the several states adopting the constitution . . . ." Id. at 277. In other words, the phrase refers to the law as it exists, rather than "an abstract justice as conceived of by the judge . . . ." Dep't of Agric. v. McCarthy, 238 Wis. 258, 270, 299 N.W. 58 (1941). Simply put, this court has repeatedly recognized that Article I, Section 9 was never intended to allow this court to jettison the common-law limitations on recovery anytime a particular plaintiff was unable to satisfy those requirements. Interpreting Article I, Section 9 in so broad a fashion would render our legal system standardless and convert it into an ad hoc system of liability where the rules are subject to change in every case.
As will be more fully discussed below, by invoking Article I, Section 9 to expand Collins well beyond the unique circumstances of that case, the majority has "effect quite a revolution in our present concepts of the rights and obligations of individuals to each other[,]" McCoy, 195 Wis. at 277, and embarked on a "radical departure from many common-law principles and rules" that serve as limitations upon a plaintiff's right to recover in tort. Id. at 278.
III.
The majority concludes that the risk-contribution theory of liability adopted in Collins should be extended to lead pigment manufacturers, majority op. ; however, there are several substantial factual distinctions between this case and Collins that render application of this theory completely inappropriate. These distinctions include: 1) a much longer time frame for when the product alleged to have caused injury may have been manufactured and distributed; 2) the plaintiff's inability to prove what product he ingested; 3) the lack of a signature injury associated with the product alleged to have caused injury; 4) the defendants' lack of exclusive control over the risk posed by the product; 5) a raw material utilized in an unintended fashion rather than a finished product utilized for its intended purpose; and 6) the lack of fungibility between variants of the product alleged to have caused injury. Because of these factu
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