Does that sound familiar? Does it sound like a law school hypo? Of course it does, because it is essentially the question every law school student talks about when discussing the famous case Summers v. Tice, which you probably don’t remember by name but you do remember the facts: two hunters shoot in the direction of the plaintiff. Only one of them hits him, but the plaintiff could not identify which one. In that case, the court decided to impose liability on both (unless either one could prove they were not the cause of the injury) as if they had both committed the act.
I am writing today about this because just a few days ago, the Connecticut Supreme Court decided to adopt this same approach and apply it to the case with the fire in the building scenario.
In doing so, the Court explained how the new rule (sometimes referred to as “alternative liability”) would be applied:
“...the rule applies only when the plaintiff can demonstrate, first, that all of the defendants acted negligently and harm resulted, second, that all possible tortfeasors have been named as defendants, and, third, that the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”When these three threshold requirements are met, the alternative liability doctrine has been recognized as a limited exception to the general rule that the plaintiff must prove that each of the defendants caused the plaintiff’s harm.
As in Summers, the Court admits that adopting this approach can result in the imposition of liability on a defendant who was actually not at fault. Yet, it is better to be unfair to a negligent defendant than to leave an innocent plaintiff without a remedy. As the Court states, “[f]aced with the choice of leaving an injured plaintiff without a remedy, on the one hand, or requiring two wrongdoers, both of whom had acted negligently toward the plaintiff and had created the situation [in which the] plaintiff was injured, [to] bear the burden of absolving themselves on the other, it seems clear that the latter approach represents the fairer, more sensible alternative.”
I should note that the term "alternative liability" is very unfortunate because it suggests that the result of the application of the doctrine is liability, when in fact it isn't. The result is to allow the plaintiff to support the element of causation without the type of proof that is typically required for it. If we are going to be technically correct, we could say the doctrine is an "alternative proof of causation" doctrine.
The case is called Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson and you can read it here.