[March 21, 2020] Sabbatical update: For obvious reasons, I am home, and not in Africa. Thanks to my wife who booked my return journey from Windhoek to Boston. Stay tuned for a return to normalcy. Meanwhile, #QuarantineLife.

Sunday, September 29, 2019

Conn. adopts alternative liability in mill-fire suit against teen smokers

The Connecticut Supreme Court adopted alternative liability in a case seeking to hold three smoking teens responsible for a vacant-mill fire.  The case is Connecticut Interlocal Risk Management Agency v. Jackson, No. SC-19946 (Conn. Sept. 17, 2019).  Here are the facts from the court opinion:

At approximately 1 a.m. on June 2, 2012, the defendants, all of whom were teenagers at the time, entered an abandoned mill located in the town. Once inside, the defendants proceeded to explore the multistory structure while drinking alcohol and smoking cigarettes. Each of them smoked approximately five cigarettes, and each discarded the cigarette butts by tossing them onto the wooden floor of the mill without extinguishing them.  The defendants left the mill at approximately 1:45 a.m.  By about 2:20 a.m., the property was engulfed in flames, and the Somers Fire Department had been dispatched to the scene. The fire destroyed both the mill and the sewage line.

Law students usually encounter “alternative liability” in the classic California case, Summers v. Tice, 199 P.2d 1 (Cal. 1948).  This multiple-liability concept allows a plaintiff to charge multiple defendants with responsibility for a wrong without establishing that any one of them was in fact responsible.  In other words, the doctrine engages a fiction as preferable to letting all defendants off the hook.

Beaver Creek quail hunting (Torrey Wiley CC BY 2.0)
In Summers, plaintiff was struck in the eye by shot as his two fellow hunters fired at quail.  It could not be determined to a preponderance of the evidence, i.e., more than 50% likelihood, which of the hunters actually fired the shot that struck the plaintiff.  But because both bore equal moral culpability under the circumstances, relative to the position of the plaintiff, it makes more sense to hold them both liable then to let both prevail.  A little shy of that result, technically, the actual effect of alternative liability is to shift the plaintiff’s burden to prove a defendant’s responsibility to a burden of each defendant to prove non-responsibility.

Alternative liability, as articulated in the Second Restatement of Torts and the Court (quoted here), pertains when: (1) “all of the defendants acted negligently and harm resulted,” (2) “all possible tortfeasors have been named as defendants,” and (3) “the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”  Alternative liability is a lawyer-at-cocktail-party favorite, but few cases have facts that can measure up to this stringent test.

Alternative liability had ramifications in the later development of narrow but important product liability doctrines, in cases in which plaintiffs struggle to link a single manufacturer among many with a particular injurious product—think in terms of a dangerous pesticide containing a mix of chemical compounds, each purchased from various sellers.  Some extension of the doctrine has been controversial in the scholarship and ill received in the courts, insofar as product liability is strict, that is, not arising upon proof of any legal or moral fault by a defendant seller.  It can seem, then, that strict product liability effectively penalizes participation in the marketplace.  Add to that the fiction of alternative liability, and it can be just too much for the conscientious economic conservative.

HT @ TortsProf Blog.  Images, by Jim Michaud, from the 2012 mill fire:

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