TORT LAW: Supreme Court adopts Alternative Liability Doctrine, allowing plaintiff to shift the burden of causation to multiple defendants

The Supreme Court in a case of first impression adopts the Alternative Liability Doctrine first articulated in Summers v. Tice, 33 Cal. 2d 80, 85-87, 199 P.2d 1 (1948).

The Alternative Liability Doctrine allows a plaintiff to the shift the burden of causation to multiple defendants to prove they did not cause the harm, where the plaintiff can prove (1) that all of the defendants acted negligently and harm resulted, (2) that all possible tortfeasors have been named as defendants, and (3) that the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.

In the case before the Supreme Court three defendants went into an abandoned sawmill late one evening and while there all proceeded to drink alcohol and smoke approximately five cigarettes each, all of which were disposed of on the floor without extinguishing.  Shortly after all three defendants left the abandoned saw mill the entire mill was engulfed in flames destroying the mill and an above ground sewage pipe in the basement.

The plaintiff established that the cause of the fire was the disposal of unextinguished cigarette butts on the floor of the mill, but could not prove which of the three defendants’ cigarette butt caused the fire.  The defendants filed a Motion for Summary Judgment as plaintiff could not prove the causation element of negligence specifically which defendants’ cigarette butt actually started the fire.  The trial court granted the Motion for Summary Judgment and refused to apply the Alternative Liability Doctrine.

The plaintiff appealed to the Appellate Court, and the Appellate Court transferred the appeal to the Supreme Court.  The Supreme Court, in holding the Alternative Liability Doctrine applied, found that the plaintiff in this case had established all three elements necessary for the doctrine to apply.  The Supreme Court reasoned that “the real reason for the rule … is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves.” Quoting Summers v. Tice, supra, 33 Cal. 2d 80, 85-86.

Connecticut Interlocal Risk Management Agency v. Christopher Jackson, Et al., SC 19946 (September 17, 2019)