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Thomas v. Mallett7/15/2005
ms that he ingested lead paint at all three houses as a small child. The owner of the first house settled with him for $62,652. The owners of the second house settled for $261,520. The insurer of the owner of the third house prevailed on a motion for summary judgment.
Plaintiff's expert did testing of paint chips at the first two houses. The expert found as many as 21 layers of paint on chips at the first house and 18 layers of paint on chips at the second house. Many of these layers contained white lead carbonate.
For purposes of this discussion, we must accept as true that Thomas ingested white lead carbonate from paint chips or dust from all three houses. However, Thomas admits that he will not be able to prove which companies among the defendants, if any, supplied paint containing white lead carbonate to any of the three houses. The plaintiff will be unable to prove that, say, ConAgra Grocery Products, or one of its subsidiaries, ever supplied white lead carbonate that ended up in paint at 2652 North 37th Street, or, if it did, whether the white lead carbonate it supplied caused injury to Thomas.
The gist of this majority opinion is to create a theory of tort liability for paint manufacturers that obviates any need for a plaintiff to provide such proof.
ANALYSIS
Normally, if Thomas proceeded on a negligence theory, he would have to prove four elements: duty, breach, causation, and damages. If he proceeded on a strict products liability theory, he would have to prove five elements: that the product was defective and unreasonably dangerous; that the product was defective when it left the possession or control of the seller; that the defect in the manufacturer's product was a cause (substantial factor) of the plaintiff's injury; that the seller was engaged in the business of selling such products; and that the product was one which the seller expected to and did reach the consumer without substantial change.
Assessing these elements, it is apparent that Thomas could not succeed under existing theories of negligence or strict products liability. Indeed, he acknowledges as much. Thomas's admitted inability to prove specific product causation would be fatal to his claim.
The facts in this case do not fit the law. So, instead of simply applying the settled law, the majority changes the law to fit the facts.
As to Thomas's negligence cause of action, the majority modifies the elements as follows: Thomas must prove (1) that he ingested white lead carbonate; (2) that the white lead carbonate caused his injuries; (3) that the "Pigment Manufacturer" defendants produced or marketed the type of white lead carbonate he ingested; and (4) that a Pigment Manufacturer's conduct in producing or marketing the white lead carbonate constituted a breach of a legally recognized duty to Thomas. Majority op., .
As to Thomas's strict products liability cause of action, the majority has modified the elements to the extent that Thomas need prove only that the white lead carbonate was (1) defective; and (2) unreasonably dangerous; (3) "that the defect[ive product] was a cause of Thomas's injuries or damages;" (4) that the manufacturer was engaged in the business of selling such products; and (5) that the product was one which the seller expected to and did reach the consumer without substantial change. Majority op., .
Thus, the majority has broken the link between manufacturer and product. Under the majority's rule, Thomas need prove only that a general type of product caused his injury; not that a specific manufacturer's product caused his injury. A manufacturer is virtually powerless to s
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