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Banks v. Sherwin-Williams Co.

Supreme Court of Mississippi

January 16, 2014

BRE'ANNAH BANKS, A MINOR, BY AND THROUGH HER NATURAL MOTHER, LEGAL GUARDIAN AND NEXT FRIEND, ETTA BANKS; LADARIUS HARP, A MINOR BY AND THROUGH HIS NATURAL MOTHER, LEGAL GUARDIAN AND NEXT FRIEND, BARBARA THOMAS; KIMBERLY NORRIS, A MINOR BY AND THROUGH HER NATURAL MOTHER, LEGAL GUARDIAN AND NEXT FRIEND, MARY NORRIS; ZERLANZEIA LAMBOUTHS, A MINOR BY AND THROUGH HIS NATURAL MOTHER, LEGAL GUARDIAN AND NEXT FRIEND, ANNIE KING; AND LAKE RICK REED, A MINOR BY AND THROUGH HIS NATURAL MOTHER, LEGAL GUARDIAN AND NEXT FRIEND, JUANITA REED
v.
SHERWIN-WILLIAMS COMPANY

Page 707

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/17/2012. TRIAL JUDGE: HON. JOHNNIE E. WALLS, JR..

FOR APPELLANTS: JARED WAYNE EASTLACK, MARK W. DAVIS, RON M. FEDER, MARTIN D. CRUMP, ROBERT SHIELDS CRUMP, III.

FOR APPELLEE: MARGARET OERTLING CUPPLES, W. WAYNE DRINKWATER, JR., JOHN G. CORLEW, KATHY A. SMITH, JANINE CONE METCALF, LUCAS WADE ANDREWS.

BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.

OPINION

Page 708

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

COLEMAN, JUSTICE

¶1. The instant matter is before the Court on appeal filed by Bre'Annah Banks, Ladarius Harp, Kimberly Norris, Zerlanzeia Lambouths, and Lakedrick Reed (collectively the " plaintiffs" ) against the Sherwin-Williams Company (" Sherwin-Williams" ).[1] The matter is an action for products liability and negligence in the Circuit Court of Bolivar County, First Judicial District. After both sides elicited evidence from lay and expert witnesses supporting their arguments, the trial court entered an order granting summary judgment for Sherwin-Williams based on the plaintiffs' failure to establish product identification, an essential element of their claim. We hold that, under the applicable standard for the consideration of summary judgment, the plaintiffs have presented enough evidence to create an issue of material fact as to whether the paint in question came from Sherwin-Williams. Accordingly, we reverse the judgment and remand the case.

FACTS AND PROCEDURAL HISTORY

¶2. The five adult plaintiffs were all minor children who lived in Rosedale, Mississippi, in the early 1990s and attended the Bolivar County Head Start facility in Rosedale. They brought a claim for products liability and negligence in the Bolivar County Circuit Court, First Judicial District, against Sherwin-Williams, alleging Sherwin-Williams sold lead paint to the Bolivar County Head Start, and the paint was used to paint playground equipment. Plaintiffs further alleged that exposure to the lead paint on the playground equipment resulted in elevated levels of lead in their blood, causing injury. During their enrollment in the early to mid-1990s, the plaintiffs received blood-lead testing, which revealed that they had blood-lead levels ranging from fifteen to nineteen micrograms per deciliter.

¶3. In 1985, Head Start hired Sylvester Vickers, a named defendant in the original suit, to sandblast all of the playground equipment, remove all of the old paint from it, and apply a fresh coat of paint, which he testified (and for our purposes the parties agree) was non-lead paint. It is uncontested that, between 1986 and 1991, Sherwin-Williams sold six gallons of lead paint to Bolivar County Head Start, although no direct evidence exists as to where the six gallons of lead paint were used. The lead paint sold by Sherwin-Williams included a gallon of yellow paint, four gallons of red, and a gallon of orange. In 2000, an investigation by the Mississippi Department of Environmental Quality revealed lead paint on the Rosedale Head Start playground equipment. The report itself notes that lead was found on playground equipment painted red, green, and yellow, as well as on equipment bearing unspecified colors or " many colors."

Page 709

¶4. Adolf Hilliard, the business manager of Bolivar County Head Start, testified that ninety-nine percent of the paint that Head Start purchased came from Sherwin-Williams. But Sherwin-Williams countered that his testimony was equivocal and that he admitted he did not really know where all the paint was purchased. Hilliard stated in a sworn affidavit that, since 1985, all painting of Head Start equipment was handled by Head Start employees, and he was " almost certain" that, prior to 1991, all of the playground equipment paint was acquired from Sherwin-Williams. On the other hand, Robert Littleton, director of field operations for Bolivar County Head Start, testified that Bolivar County Head Start used Sherwin-Williams paint for " a lot ...


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