Connecticut Adopts Alternative Liability Doctrine

The Connecticut Supreme Court recently adopted the alternative liability doctrine, shifting the burden of proof on causation in negligence cases involving multiple defendants where it is certain that one or more of them caused the harm, but impossible for the plaintiff to prove specifically who did.

Under the doctrine, a defendant must prove freedom from fault to escape liability rather than the plaintiff having to prove fault to impose it.

The doctrine is a necessary, albeit little-used, exception to apportionment, which replaced joint and several liability in Connecticut in the 1980s.

Joint and Several Liability vs. Apportionment

Before the 1980s, lack of certainty about which of multiple wrongdoers caused the harm was no problem for a negligence plaintiff because Connecticut imposed joint and several liability on joint tortfeasors. Each defendant was fully liable to the plaintiff for the entire harm.

As part of tort reform, Connecticut abolished joint and several liability and replaced it with apportionment. This change makes each defendant liable to the plaintiff only for his or her proportionate share of the harm. And it requires the plaintiff to prove that each defendant was in fact responsible for some portion of the harm.

One consequence of apportionment is that the plaintiff can’t recover anything from anyone if it can’t prove that at least one of the defendants caused at least some portion of the harm. That’s unfair to the plaintiff because it allows all defendants to escape liability when there is no question that at least one of them is responsible for the injury.

Enter the Alternative Liability Doctrine

To cure that unfairness, the Connecticut Supreme Court recently adopted the alternative liability doctrine. In Connecticut Interlocal Risk Management Agency v. Jackson, three teens were smoking cigarettes in an abandoned mill. Shortly after they left, the mill went ablaze. The fire damaged a town sewer line in a lower level. The town’s insurance company covered the loss and sued the teens as the town’s subrogee.

There was no dispute that each of the teens had smoked multiple cigarettes while inside the mill or that each had thrown the butts on the wooden floors of the mill without putting them out. The plaintiff’s two experts said that the fire started from careless disposal of cigarettes.

But because the plaintiff had no way of proving which teen started the fire, and apportionment was the law of the land, the trial court was constrained to grant the teens summary judgment.

Plaintiff appealed. The Connecticut Supreme Court took the case and unanimously adopted the doctrine. It confirmed that the burden of proof on causation shifts to defendants if “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.” Damages are apportioned equally among the defendants who could not absolve themselves of fault.

What does this mean for the future?

Not much. Though the doctrine is a necessary exception to apportionment to insure fairness to plaintiffs, it is of limited application since the burden shifting applies only if all defendants were negligent in the same way at the same time and could have caused the same harm. That doesn’t happen very often.

Indeed, the doctrine pre-existed apportionment in Connecticut, having originated in California in 1948. Yet, it was not until some 35 years after apportionment that any Connecticut appellate court had occasion to consider adopting it. That it took so long for Connecticut to officially recognize a rule of such obvious fairness shows that the conditions for its application are infrequent, meaning that it won’t affect many Connecticut cases going forward.