The Wisconsin Supreme Court has handed down another victory for lead paint manufacturers in ruling that paint is not defective due to the lead. The rejection of the defective design claim by Ruben Baez Godoy is only the latest such victory for the industry (here).
Godoy is a boy who developed lead poisoning from paint in Milwaukee. Lead was banned in paint in 1977, but many homes still have prior coatings of such paint and kids often ingest lead-laden chips.
The ruling will effectively negate 30 pending lawsuits alleging design defects in lead paint.
Wisconsin rejects the Restatement (Third) of Torts, which is viewed by many as gutting the consumer protection emphasis of tort law and was the product of “tort reformers” who sought to limit the scope of strict liability. Instead, they continue to apply the standard of the Restatement (Second) of Torts:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is liable for physical harm . . . if:
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Restatement (Second) of Torts § 402A(1).
The court reaffirms not only its earlier rejection of the Restatement (Third) but that “Wisconsin strict products liability law does not require a plaintiff to prove the feasibility of an alternative design.” It later adds “We have explained that although the feasibility of an alternative design can be considered when evaluating a design
defect claim, it is not a requirement.”
Thus, while this is a ruling against the plaintiffs, it is also a ruling that is supportive of the more liberal definition of products liability for other cases.
This court recently reaffirmed that Wisconsin applies the consumer contemplation test to determine whether a product is defective under strict liability. Id., ¶35. “Defective,” for purposes of the consumer contemplation test, means that the product is “in a condition not contemplated by the ultimate consumer and unreasonably dangerous to that consumer.” Id., ¶29 (quoting Beacon Bowl, Inc. v. Wis. Elec. Power Co., 176 Wis. 2d 740, 792, 501 N.W.2d 788 (1993)).
The court holds:
A claim for defective design cannot be maintained where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself. Without lead, there can be no white lead carbonate pigment. The complaint fails to allege a design feature that makes the design of white lead carbonate pigment defective.
The court rules out recovering under either a strict liability or negligence theory: “Here, what is lacking in the strict liability for defective design claim is lacking in the negligent design claim as well. Neither claim alleges a design defect that is not characteristic of the product itself. As such, neither alleges a design feature that makes the design of white lead carbonate pigment defective.”
For the opinion, click here.