Trial News

In a case involving three defendants who negligently disposed of their cigarettes at an old mill, leading to a fire that destroyed the mill and a sewer line, the Connecticut Supreme Court has held that the plaintiff insurance agency need not prove which of the defendants’ cigarettes caused the fire. In an issue of first impression, the court adopted the alternative liability doctrine, which provides that when two or more defendants may have caused a harm, and there is uncertainty as to which defendant is at fault, the burden is on each defendant to establish that he or she has not caused the harm. (Conn. Interlocal Risk Mgmt. Agency v. Jackson, 2019 WL 4399329 (Conn. Sept. 17, 2019).)

Christopher Jackson, Wesley Hall, and Erin Houle entered an abandoned mill in Somers, Conn., at about 1 a.m. on June 2, 2012. All three smoked cigarettes and discarded them, unextinguished, onto the mill’s wooden floor. By 2:20 a.m., the mill was in flames. The fire destroyed the mill and a public aboveground sewage line in the mill’s basement. Two forensic fire experts determined that the unextinguished cigarettes caused the fire.

Connecticut Interlocal Risk Management Agency, a self-insurance company that includes several Connecticut municipalities and schools, reimbursed the town of Somers for the sewer line. The insurance agency then filed a subrogation action against Jackson, Hall, and Houle, claiming that their negligent disposal of cigarettes led to the fire and destruction of the town’s sewer line.

The defendants claimed that the plaintiff insurance agency had not established causation because it had failed to show which of the defendants’ cigarettes caused the blaze. The plaintiff argued the court should adopt the alternative liability doctrine—each defendant would have the burden of proving that his or her cigarette did not cause the fire. The trial court declined to adopt this doctrine, finding that the decision was best left to a state appellate court or the state legislature, and dismissed the case.

On appeal, the Connecticut Supreme Court looked to the initial reasoning for the doctrine as set forth by the California Supreme Court in Summers v. Tice. (33 Cal. 2d 80 (1948).) That court had reasoned that the doctrine was necessary because of “the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each [defendant] did, when it is certain that between them they did all.” Noting that the doctrine has now “been accepted by virtually all jurisdictions,” the Connecticut Supreme Court determined that having finally been presented with the matter it too would adopt the doctrine.

The court set forth a three-part test to determine when applying the alternative liability doctrine is appropriate: Plaintiffs must demonstrate that “all of the defendants acted tortiously and that the harm resulted from the conduct of one of them,” that each of the defendants’ conduct created “a substantially similar risk of harm,” and that all possible responsible parties were joined as defendants. (Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691 (1987).)

The court rejected the defendants’ argument that the doctrine is inconsistent with the state’s statutory scheme, which replaced the common law rule of joint and several liability with apportioned liability. Under both the common law and the apportioned liability schemes, the court reasoned, the alternative liability doctrine “places the burden on the tortfeasors to demonstrate that they did not cause the damages.” Therefore, adopting the doctrine is not a return to joint and several liability but rather is compatible with the state’s “modern apportionment scheme.” Furthermore, the court said, defendants may fare better under the doctrine, because if they cannot prove which of them is liable, they will each be held liable only for their proportionate share of the damages.

The defendants also argued the doctrine should not apply retroactively. The court found that limiting its holding to prospective application would be appropriate only if the defendants could demonstrate that applying the doctrine to them “would produce substantial inequitable results, injustice or hardship.” Rejecting this argument, the court rationalized that the defendants would have acted no differently had the doctrine been adopted prior to their actions.

“The court recognized that justice is better served under the alternative liability doctrine,” said Bridgeport, Conn., attorney Kathleen Nastri. “The doctrine is consistent with the purposes of the tort system, which is to hold wrongdoers accountable and provide fair compensation to victims,” she added. “While I expect this decision to have limited application, it will allow plaintiffs to be compensated in cases with multiple defendants even if the available evidence does not provide a way to prove which defendant’s specific conduct led to the harm.”