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Thomas v. Mallett7/15/2005
Whether it appears in retrospect too extraordinary that the negligence should have brought about the harm; (4) Whether allowance of recovery would place an unreasonable burden on the tortfeasor; (5) Whether allowance of recovery would be too likely to open the way to fraudulent claims; and (6) Whether allowance of recovery would enter a field that has no sensible or just stopping point.
Even if we were to assume, arguendo, that Thomas could prove causation and thus negligence, all these factors would weigh against attaching liability. First, the alleged injury here is too remote from the negligence. The white lead carbonate at issue may have been produced as much as 100 years ago. It is almost impossible to defend against alleged negligence that no living person can remember.
Second, the injury is wholly out of proportion to the defendants' culpability. The recent negligence of a landlord in allowing the paint to deteriorate seems greater than the negligence of the manufacturer of one of the raw materials used to make the paint perhaps a half century ago.
Third, in retrospect it appears too extraordinary that the negligence should have brought about the harm. It is not enough for the majority to allege, in its presentation of the facts, some sort of industry-wide knowledge on the part of lead paint suppliers. The plaintiff should have to show that each defendant had knowledge of the dangers of white lead carbonate, not lead paint.
Fourth, allowance of recovery would place an unreasonable burden on the defendant. As stated above, it is nearly impossible to defend a suit alleging negligence 50 to 100 years in the past. Even if a defendant had insurance during the entire time it was involved with white lead carbonate, it might have changed insurers, none of whom will now be eager to step forward with coverage. How will a defendant prove coverage? Even if coverage could be proved, how will 1930s insurance pay for 21st century damages?
Fifth, allowance of recovery would be too likely to open the way to fraudulent claims. In erasing the causation requirement, the majority kicks out one of the legs supporting conventional principles of tort liability. These time-honored standards have been designed to ensure that meritorious claims are rewarded and fraudulent claims are rejected. The majority's action tilts the balance to substantially increase the possibility of fraudulent claims.
Sixth, the principles in the majority opinion have no sensible or just stopping point. As Justice Wilcox's dissent (which I wholeheartedly join) points out, the majority discards the principle of fungibility underpinning the Collins rationale. The reasoning in the majority opinion could be adapted to cover other raw materials. Further, under the majority opinion, plaintiffs injured in other states have the option to come to our courts and sue Wisconsin raw material manufacturers for harm that occurred elsewhere.
By illustrating the fundamental unfairness worked by the majority opinion, these six factors provide additional evidence that the majority opinion violates the core due process right of "fair play," as well as the defendants' right to equal protection of the law. Given the near-unanimous rejection of this theory by other courts, this invasion is as unexpected as it is unwarranted.
CONCLUSION
The consequences of the majority opinion may be staggering for Wisconsin industry and commerce. When Mautz Paint, a home-grown Wisconsin company, faced a similar suit, it was forced to sell out to an out-of-state company. The new owner quickly moved all manufacturing jobs out of state.
The harmful e
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