Connecticut Interlocal Risk Management Agency v. Jackson ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CONNECTICUT INTERLOCAL RISK MANAGEMENT
AGENCY v. CHRISTOPHER
JACKSON ET AL.
(SC 19946)
Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to the alternative liability doctrine, when the conduct of two or
more actors is tortious and it is proven that the plaintiff’s injuries have
been caused by only one of those actors but it is unclear which one,
the burden of proving causation shifts from the plaintiff to each actor
to prove that he did not cause those injuries.
The plaintiff appealed from the trial court’s judgment in favor of the defen-
dants, three teenagers who had entered an abandoned mill in the town
of Somers and discarded multiple cigarette butts without extinguishing
them, thereby causing a fire that destroyed the mill and a sewage line
in the mill’s basement. While the defendants were exploring inside the
mill for about forty-five minutes, each of them smoked approximately
five cigarettes and discarded their unextinguished cigarettes by tossing
them onto the mill’s wooden floor. Experts later determined that the
likely cause of the fire was the defendants’ careless disposal of the
cigarettes. After the plaintiff paid the town for the cost of replacing
the sewage line, it brought the present subrogation action against the
defendants. The trial court granted the defendants’ motions for summary
judgment, concluding that the plaintiff could not prevail on the element
of causation because it was unable to establish which of the defendants’
cigarettes caused the fire. The trial court also declined the plaintiff’s
request to apply the alternative liability rule, reasoning that it would
have the effect of significantly changing the negligence standards in this
state and that adoption of the rule was a policy decision to be made
by an appellate court or the legislature, none of which previously had
endorsed the rule. On appeal, the plaintiff claimed that the trial court
improperly failed to apply the alternative liability rule in granting the
defendants’ motions for summary judgment. Held that the plaintiff
should have received the benefit of the alternative liability rule for the
purpose of proving its case against the defendants, and, therefore, this
court reversed the trial court’s judgment and remanded the case for
further proceedings: faced with the choice of leaving an injured plaintiff
without a remedy, on the one hand, and requiring multiple wrongdoers,
all of whom acted negligently toward the plaintiff and created the situa-
tion in which the plaintiff was injured, to bear the burden of absolving
themselves, on the other, this court concluded that the latter approach,
which has been adopted in at least some form in nearly all jurisdictions,
represented the fairer, more sensible alternative, and, accordingly, this
court adopted the alternative liability rule for application in cases in
which the plaintiff can demonstrate that all of the defendants acted
negligently and the plaintiff suffered harm, all possible tortfeasors have
been named as defendants, and the tortfeasors’ negligent conduct was
substantially simultaneous in time and of the same character so as to
create the same risk of harm; moreover, all of the requirements for the
rule to apply were satisfied in the present case, as the plaintiff had
adduced evidence demonstrating that all three of the defendants acted
negligently, that all possible tortfeasors had been named as defendants,
and that the tortious conduct of those defendants was substantially
simultaneous and of the same character; furthermore, this court’s adop-
tion of the alternative liability rule was not incompatible with this state’s
statutory apportionment of liability scheme, the defendants identified
no facts or circumstances that would render retroactive application of
the alternative liability rule in the present case unfair or unduly harsh,
and there was no basis for the defendants’ claim that applying the rule
to them would violate or compromise any legitimate reliance interest
that they may have had.
Argued November 9, 2018—officially released September 17, 2019
Procedural History
Action to recover damages to certain real property
sustained as a result of the defendants’ alleged negli-
gence, and for other relief, brought to the Superior
Court in the judicial district of Tolland, where the court,
Cobb, J., granted the defendants’ motions for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed. Reversed; further proceedings.
Heather J. Adams, with whom was Sarah F. D’Ad-
dabbo, for the appellant (plaintiff).
James P. Sexton, with whom were Danielle J.B.
Edwards, Sergio C. Deganis and Erin M. Field, for the
appellees (defendants).
Opinion
PALMER, J. To prevail in a negligence action, a plain-
tiff ordinarily must establish all of the elements of that
cause of action, namely, duty, breach, causation, and
damages. See, e.g., Snell v. Norwalk Yellow Cab, Inc.,
332 Conn. 720, 742, A.3d (2019). In this appeal,
which presents an issue of first impression for this
court, we must decide whether to adopt the alternative
liability doctrine, which was first articulated in Sum-
mers v. Tice, 33 Cal. 2d 80, 85–87, 199 P.2d 1 (1948),
and later endorsed by the Restatement (Second) of
Torts. That rule provides that, when ‘‘the conduct of
two or more actors is tortious, and it is proved that
harm has been caused to the plaintiff by only one of
them, but there is uncertainty as to which one has
caused it, the burden is upon each such actor to prove
that he has not caused the harm.’’ 2 Restatement (Sec-
ond), Torts § 433 B (3), pp. 441–42 (1965).1 We are
persuaded that the doctrine is a sound one and therefore
adopt it.
The plaintiff, Connecticut Interlocal Risk Manage-
ment Agency, as subrogee of its insured, the town of
Somers (town), brought this action against the defen-
dants, Christopher Jackson, Wesley Hall, and Erin
Houle, claiming that their negligent disposal of ciga-
rettes inside an abandoned, privately owned mill in the
town ignited a fire that destroyed both the mill and a
public, aboveground sewage line in the basement of
the mill. The trial court granted the defendants’ motions
for summary judgment on the ground that the plaintiff
could not establish which of the defendants’ cigarettes
had sparked the blaze and, therefore, could not estab-
lish causation, an essential element of its cause of
action. In doing so, the trial court declined the plaintiff’s
request that it adopt the alternative liability doctrine as
set forth in § 433 B (3) of the Restatement (Second),
concluding, inter alia, that whether to do so was a
decision only this court, the Appellate Court or the
legislature properly should make. We reverse the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. 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 pro-
ceeded to explore the multistory structure while drink-
ing alcohol and smoking cigarettes. Each of them
smoked approximately five cigarettes, and each dis-
carded 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.
The plaintiff compensated the town for the loss of the
sewage line and, subsequently, commenced the present
subrogation action against the defendants to recover
the cost of replacing the sewage line. For purposes of
this action, the plaintiff retained the services of two
forensic fire experts, Detective Scott J. Crevier and
Trooper Patrick R. Dragon, both of the Connecticut
Department of Public Safety. Crevier and Dragon each
opined that the likely cause of the fire was the careless
disposal of the cigarettes.
The trial court thereafter granted the defendants’
motions for summary judgment, concluding that the
plaintiff could not prevail on the element of causation
because it admittedly was unable to establish which
of the defendants’ cigarettes had caused the fire. In
reaching its conclusion, the trial court declined the
plaintiff’s request to apply the alternative liability rule
because to do so ‘‘would result in . . . a significant
change in the negligence standards of this state,’’ as
reflected in ‘‘long-standing and binding’’ legal prece-
dent, ‘‘by shifting the burden of proof to the defen-
dants,’’ such that the policy decision to adopt the rule
was ‘‘better left to the legislature, the Appellate Court
or [this] [c]ourt,’’ none of which previously had
endorsed the rule. The court also expressed concern
that the adoption of such a rule ‘‘would be inconsistent
with the tort reforms of the 1980s pursuant to which
joint and several liability was abolished in favor of
apportionment.’’
On appeal,2 the plaintiff renews its claim that, under
the unusual circumstances presented, it is only fair that
the burden of proof on causation be shifted to the defen-
dants so that they are required to establish that their
negligence in discarding the cigarettes did not cause
the fire. Otherwise, the plaintiff contends, it will be left
without a remedy because, through no fault of its own,
it will be unable to prove causation even though it is
undisputed that all of the defendants were negligent in
discarding the cigarettes and that that conduct by at
least one or more of the defendants caused the fire.
The plaintiff supports this argument with the observa-
tion that the fire, for which it bears no responsibility,
resulted in the destruction of evidence that the plaintiff
otherwise might have used to establish which of the
defendants started the fire. For their part, the defen-
dants maintain that the trial court properly declined to
apply the alternative liability rule, first, because the
plaintiff cannot establish the threshold requirements of
the rule and, second, because the rule is incompatible
with our modern tort system, which is predicated on
apportionment of liability rather than joint and several
liability. Finally, the defendants argue that, even if we
were to adopt the alternative liability doctrine, we
should apply it prospectively only and not retroactively
to the defendants’ conduct.
We begin our analysis of the plaintiff’s claim by set-
ting forth the standard of review. ‘‘[T]he scope of our
appellate review depends [on] the proper characteriza-
tion of the rulings made by the trial court. To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Kelly v.
New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005).
Because the plaintiff claims that the trial court failed
to apply the appropriate legal principle, namely, the
alternative liability doctrine, in granting the defendants’
motions for summary judgment, our review is plenary.
As we previously noted, the alternative liability doc-
trine, which was first articulated and adopted in Sum-
mers v. Tice, supra, 33 Cal. 2d 80, is an exception to
the general rule that a plaintiff in a negligence action
carries the burden of establishing that the defendant’s
tortious conduct caused the plaintiff’s injury. In Sum-
mers, the plaintiff, Charles A. Summers, was injured
when the defendants, two fellow hunters who knew
Summers’ approximate location, negligently shot at the
same time in his direction. Id., 82–83. Following a bench
trial, the court found for Summers, and, thereafter, the
hunters appealed, claiming, among other things, that
there was insufficient evidence to establish which of
them had caused Summers’ injuries. See id., 82–84. The
California Supreme Court affirmed the trial court’s judg-
ment; id., 88; and, in so doing, adopted a burden shifting
rule pursuant to which each of the hunters, in order to
avoid liability on the issue of causation, was required
to prove that his shot was not the cause of Summers’
injuries. Id., 86–87.
The court reasoned: ‘‘When two or more persons by
their acts are possibly the sole cause of a harm . . .
and the plaintiff has introduced evidence that . . . one
of the two persons . . . is culpable, then the defendant
has the burden of proving that the other person . . .
was the sole cause of the harm.’’ (Internal quotation
marks omitted.) Id., 85. The court explained that ‘‘[t]he
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.’’ (Internal
quotation marks omitted.) Id., 85–86. ‘‘When [the court]
consider[s] the relative position of the parties and the
results that would flow if [Summers] was required to
pin the injury on one of the [hunters] only, a requirement
that the burden of proof on that subject be shifted to
[the hunters] becomes manifest. They are both wrong-
doers—both negligent toward [Summers]. They
brought about a situation [in which] the negligence of
one of them injured [Summers] . . . [and thus] it
should rest with . . . each [hunter] to absolve himself
if he can. The injured party has been placed by [the
hunters] in the unfair position of pointing to which
[hunter] caused the harm. If one can escape the other
may also and [Summers] is remediless.’’ Id., 86. The
court further observed that the rule found additional
support in the fact that, ‘‘[o]rdinarily defendants are in
a far better position to offer evidence to determine
which one caused the injury.’’ Id.
In reaching its conclusion, the court rejected the
hunters’ assertion that such a burden shifting rule con-
flicted with that court’s established precedent that,
‘‘[when] two or more [tortfeasors] acting independently
of each other cause an injury to [a] plaintiff, they are
not joint [tortfeasors] and [the] plaintiff must establish
the portion of the damage caused by each, even though
it is impossible to prove the portion of the injury caused
by each.’’ Id., 87. The court explained, rather, ‘‘that the
same reasons of policy and justice’’ that militated in
favor of adopting the burden shifting rule as to the
issue of causation also justified ‘‘relieving the wronged
person of the duty of apportioning the injury to a partic-
ular defendant . . . . If [the] defendants are indepen-
dent [tortfeasors] and thus each [is] liable for the dam-
age caused by him alone, [then], at least, [when] the
matter of apportionment is incapable of proof, the inno-
cent wronged party should not be deprived of his right
to redress. [Instead] [t]he wrongdoers should be left
to work out between themselves any apportionment.’’3
Id., 88.
Although this court previously has not had occasion
to consider the alternative liability rule, it appears that
at least some version of the doctrine ‘‘has been accepted
by virtually all jurisdictions.’’ M. Geistfeld, ‘‘The Doc-
trinal Unity of Alternative Liability and Market-Share
Liability,’’ 155 U. Pa. L. Rev. 447, 447 (2006); see also
1 Restatement (Third), Torts, Liability for Physical and
Emotional Harm § 28, comment (f), p. 476 (2010)
(‘‘[o]nly two jurisdictions have rejected the concept of
alternative liability since the . . . Restatement [Sec-
ond]’’); 1 D. Dobbs, The Law of Torts (2000) § 175,
p. 428 (‘‘most courts appear to regard [Summers] as
established law on its facts’’). Our research confirms
that the vast majority of jurisdictions to have considered
the issue have adopted the doctrine. See, e.g., Bowman
v. Redding & Co., 449 F.2d 956, 967–68 (D.C. Cir. 1971)
(construing law of District of Columbia); Abel v. Eli
Lilly & Co., 418 Mich. 311, 329, 343 N.W.2d 164, cert.
denied sub nom. E.R. Squibb & Sons, Inc. v. Abel, 469
U.S. 833, 105 S. Ct. 123, 83 L. Ed. 2d 65 (1984); Estate
of Chin ex rel. Chin v. St. Barnabas Medical Center,
160 N.J. 454, 464, 734 A.2d 778 (1999); Roderick v. Lake,
108 N.M. 696, 701, 778 P.2d 443 (App.) (overruled in
part on other grounds by Heath v. La Mariana Apart-
ments, 143 N.M. 657, 180 P.2d 664 [2008]), cert. denied,
108 N.M. 681, 777 P.2d 1325 (1989); Silver v. Sportsstuff,
Inc., 130 A.D. 3d 907, 909, 14 N.Y.S.3d 421 (2015);
Trapnell v. Sysco Food Services, Inc., 850 S.W.2d 529,
539–40 (Tex. App. 1992), aff’d, 890 S.W.2d 796 (Tex.
1994); see also Snoparsky v. Baer, 439 Pa. 140, 144–45,
266 A.2d 707 (1970).4
As both the Restatement (Second) and those courts
have explained, 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. See 2 Restatement
(Second), supra, § 433 B, comments (f) and (g), p. 446;
see also, e.g., Goldman v. Johns-Manville Sales Corp.,
33 Ohio St. 3d 40, 45, 46, 47, 514 N.E.2d 691 (1987) (‘‘the
burden shifts to the defendant only if the plaintiff can
demonstrate that [1] all defendants acted tortiously and
that the harm resulted from conduct of one of them,’’ [2]
‘‘the defendants’ conduct creates a substantially similar
risk of harm,’’ and [3] ‘‘all the parties who were or could
have been responsible for the harm to the plaintiff were
joined as defendants’’).
The reasons for these requirements are evident. With
respect to the first requirement, a plaintiff must estab-
lish by a preponderance of the evidence that all defen-
dants acted negligently before the burden of proof on
causation shifts because the rationale for the exception
is the unfairness inherent in permitting multiple tortfea-
sors, acting simultaneously, to escape liability merely
because their conduct and the resulting harm has made
it difficult, if not impossible, for the plaintiff to demon-
strate which of them caused the harm. See 2 Restate-
ment (Second), supra, § 433 B, comment (f), p. 446; see
also Bowman v. Redding & Co., supra, 449 F.2d 968
(reasoning that alternative liability rule serves interests
of justice and is so limited in applicability that it does
not conflict with settled negligence principles). Thus,
if a plaintiff fails to prove that all of the defendants
committed tortious acts that may have caused the harm,
the doctrine does not apply. See, e.g., Porterie v. Peters,
111 Ariz. 452, 456, 532 P.2d 514 (1975) (declining to
apply alternative liability rule because ‘‘the proof [was]
not clear as to which of the defendants, if any . . .
committed an act of negligence [that] produced [the]
plaintiff’s injury’’); Cuonzo v. Shore, 958 A.2d 840, 844
(Del. 2008) (declining to apply rule because plaintiff
injured in automobile accident ‘‘never contended’’ that
both of the defendant drivers were negligent); Goldman
v. Johns-Manville Sales Corp., supra, 33 Ohio St. 3d 46
(‘‘[T]his theory relaxes only the traditional requirement
that the plaintiff demonstrate that a specific defendant
[or defendants] caused the injury. But the relaxation is
. . . warranted [only when the] plaintiff shows that all
defendants acted tortiously.’’).
With respect to the second requirement, a plaintiff
must establish that all possible tortfeasors have been
named as defendants ‘‘to eliminate from the jury’s con-
sideration the theory that some other cause, besides a
joined [defendant’s] conduct, caused the injury.’’ Trap-
nell v. Sysco Food Services, Inc., supra, 850 S.W.2d 539
n.7. Otherwise, it simply would not be fair and equitable
to relieve the plaintiff of the responsibility of proving
which tortfeasor or tortfeasors caused the harm. And,
finally, with respect to the third requirement, a plaintiff
must demonstrate that the tortious conduct was sub-
stantially simultaneous in time and of the same charac-
ter so as to create the same risk of harm because it
would be unreasonable to require defendants to absolve
themselves from liability unless ‘‘the likelihood that any
one of them injured the plaintiff is relatively high.’’
(Internal quotation marks omitted.) Silver v. Sports-
stuff, Inc., supra, 130 A.D. 3d 910.
We agree with our sister states that, when these three
threshold requirements have been met, the alternative
liability doctrine should be recognized as a limited
exception to the general rule that the plaintiff in a negli-
gence action must prove that each of the defendants
caused the plaintiff’s harm, in addition to all of the
other elements of that tort. Faced 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 cre-
ated the situation [in which the] plaintiff was injured,
[to] bear the burden of absolving themselves’’; Abel v.
Eli Lilly & Co., supra, 418 Mich. 326; on the other, it
seems clear that the latter approach represents the
fairer, more sensible alternative. See, e.g., 2 Restate-
ment (Second), supra, § 433 B, comment (f), p. 446
(application of alternative liability rule is warranted by
virtue of unfairness that would exist if multiple, proven
tortfeasors were allowed to avoid liability merely
because manner in which they were negligent and
nature of resulting harm have precluded plaintiff from
establishing which of them caused that harm); Wysocki
v. Reed, 222 Ill. App. 3d 268, 278, 583 N.E.2d 1139 (1991)
(‘‘[w]e believe it is more unjust that the injured party
receive nothing from two admitted wrongdoers’’),
appeal denied, 144 Ill. 2d 644, 591 N.E.2d 32 (1992);
Roderick v. Lake, supra, 108 N.M. 701 (alternative liabil-
ity rule is ‘‘fairest and most logical way to determine
the amount of fault of two or more tortfeasors in the
unusual circumstances . . . [in which the] plaintiff can
prove [that the] defendants were negligent . . . but
cannot prove which defendant’s negligence caused the
injury, or which defendant was more at fault’’).
The three requirements for application of the alterna-
tive liability doctrine are satisfied in the present case.
The plaintiff has adduced evidence demonstrating that
all three of the defendants acted negligently in the man-
ner in which they disposed of their cigarettes in the
mill, that all possible tortfeasors have been named as
defendants, and that the tortious conduct of those
defendants was substantially simultaneous in time and
of the same character so as to give rise to the same
risk of harm. We therefore agree with the plaintiff that
we must reverse the trial court’s decision to grant the
defendants’ motions for summary judgment and that
the plaintiff is entitled to the benefit of the alternative
liability doctrine for the purpose of proving its case
at trial.
The defendants argue against application of the doc-
trine for three reasons: (1) the plaintiff has failed to
satisfy the rule’s requirements; (2) the rule is inconsis-
tent with our statutory apportionment scheme; and (3)
even if this court were to adopt the rule, it should not
be applied retroactively to the defendants’ conduct in
this case. None of these contentions is persuasive.
First, the defendants claim that the plaintiff has not
produced sufficient evidence to create a triable issue
as to all of the necessary conditions for the alternative
liability rule to apply. Although conceding that the plain-
tiff appears to have named all possible tortfeasors as
defendants and presented evidence sufficient to estab-
lish that the defendants’ tortious conduct was substan-
tially simultaneous and similar in nature, the defendants
nevertheless assert that there are three additional
requirements that the plaintiff must meet before the
rule may be applied. Specifically, they maintain that the
plaintiff must demonstrate that (1) one, and only one,
of the defendants possibly could have caused the harm,
(2) the defendants have better information about causa-
tion than the plaintiff, and (3) the plaintiff is completely
innocent with regard to the loss. We disagree that the
plaintiff is entitled to the benefit of the rule only upon
satisfaction of these three requirements.
To support their contention that the plaintiff must
prove that only one defendant caused the harm in order
to avail itself of the rule, the defendants rely on Thodos
v. Bland, 75 Md. App. 700, 542 A.2d 1307, cert. denied,
313 Md. 689, 548 A.2d 128 (1988). In Thodos, the plaintiff,
Patricia Thodos, was a passenger in a car driven by the
defendant Alton Linsey Thacker that collided with a
car driven by the other defendant, Brian Bland. Id.,
703. The Maryland Court of Special Appeals declined
to recognize the applicability of the alternative liability
rule under the circumstances, which involved Thodos’
failure to convince the jury that either Bland or Thacker
or both of them were negligent and that such negligence
caused Thodos’ injuries. Id., 712. Thodos does not stand
for the proposition advanced by the defendants in the
present case; rather, the court in Thodos rejected the
applicability of the rule because Thodos failed to prove
that both Bland and Thacker were negligent, that
Thodos’ injuries were caused by the negligence of only
one of them, and that there was uncertainty as to which
one. Id., 715–17. More to the point, conditioning the
application of the doctrine on proof that only one defen-
dant caused the harm conflicts with the core rationale
underlying the rule, namely, to address the unfairness
that arises when, as a consequence of the simultaneous
negligence of multiple defendants, it is impossible for
the plaintiff ‘‘to pin the injury on one of the defendants
only . . . .’’ Summers v. Tice, supra, 33 Cal. 2d 86.
The defendants also contend that the doctrine should
be applied only upon a showing by the plaintiff that the
defendants have better access to information concern-
ing the actual cause of the harm sustained by the plain-
tiff. It is true that, in Summers, the court recognized
that, as a general matter, when the negligent conduct
of multiple tortfeasors is more or less simultaneous,
each such tortfeasor is likely to be better situated than
the plaintiff to know who among them caused the plain-
tiff’s injury. See id. As other courts have observed, how-
ever, the court in Summers made this point only by
way of explaining the justifications underlying the alter-
native liability rule, and there is nothing in the court’s
decision in Summers to suggest that a plaintiff must
demonstrate, in any particular case, that the tortfeasors
have better access than the plaintiff to information con-
cerning the cause of the plaintiff’s injuries. See, e.g.,
Abel v. Eli Lilly & Co., supra, 418 Mich. 333–34 (noting
that defendants’ access to evidence of causation is not
required); Silver v. Sportsstuff, Inc., supra, 130 Ohio App.
Div. 3d 910 (‘‘[A]lthough Summers indicated that defen-
dants are [o]rdinarily . . . in a far better position to
offer evidence to determine which one caused the
injury, the [decision] in Summers did not conclude that
the two defendants, simultaneously shooting in the
same direction, were in a better position than the plain-
tiff to ascertain whose shot caused the injury . . . .
Thus, in [Summers] the paradigm case for alternative
liability, the defendants did not have greater access
to information that might establish the identity of the
tortfeasor . . . .’’ [Citations omitted; internal quotation
marks omitted.]). Indeed, adopting the requirement
advocated by the defendants may only encourage those
defendants to adopt a strategy of wilful ignorance or
to remain silent to avoid liability. See id., 910–11 (‘‘fail-
ure to apply the [burden shifting] doctrine of alternative
liability to circumstances such as those presented . . .
might encourage products distributors to remain silent
by failing to adequately label or track their products,
and thereby shielding their identity, as a means of
avoiding liability’’ [internal quotation marks omitted]).
The defendants also maintain, in reliance on Leuer
v. Johnson, 450 N.W.2d 363 (Minn. App. 1990), that, to
take advantage of the doctrine, the plaintiff must prove
it was innocent of all wrongdoing. Leuer, however, is
inapposite to the present case because it involved the
issue of whether the doctrine of res ipsa loquitur
applied, not the alternative liability doctrine. See id.,
363–66. Indeed, even if we agreed—and we do not—
with the defendants’ unsupported claim that the alterna-
tive liability doctrine applies only if the plaintiff can
prove that it was altogether free of blame for its injuries,
the defendants have offered no evidence that the town
breached any duty in regard to the mill.
The defendants next argue that, even if the plaintiff
has satisfied all three of the requirements that we have
identified as necessary prerequisites for application of
the rule, the rule is incompatible with this state’s enact-
ment of tort reform, pursuant to which the legislature
replaced the common-law rule of joint and several liabil-
ity with apportioned liability, whereby each tortfeasor is
liable for his or her proportionate share of the plaintiff’s
damages. Specifically, the defendants argue that the
rule ‘‘[c]annot [w]ork’’ without joint and several liability
because, in its absence, defendants ‘‘have no incentive’’
to meet their burden of disproving that their negligence
caused the plaintiff’s injury, thereby ‘‘mak[ing] it impos-
sible for a fact finder to apportion liability’’ without
resort to impermissible speculation. We find no merit
in this argument.
We disagree that, under the alternative liability rule,
defendants ‘‘have no incentive’’ to establish that their
negligence was not a cause of the injuries because it
is only by doing so that they will be able to avoid
liability. This is true under a system that holds tortfea-
sors jointly and severally liable for their negligence or
under a system based on apportionment of liability:
under either scheme, the alternative liability rule places
the burden on the tortfeasors to demonstrate that they
did not cause the damages, and, if they fail to meet that
burden, they will be held liable.
We acknowledge, as the defendants assert, that the
rule deviates from established negligence principles by
allowing the fact finder, in the absence of evidence
to the contrary, to conclude that all three defendants
caused the plaintiff’s injury and, therefore, that all three
defendants are equally liable for the plaintiff’s damages.
Contrary to the defendants’ assertions, however, use
of this presumption to address the evidentiary lacuna
created by the tortfeasors’ simultaneous negligence is
not a disqualifying feature but, rather, the sine qua non
of the rule. As one court aptly stated in addressing a
similar contention, ‘‘[§ 433 B (3) of the Restatement
(Second)] is an exception to the general rule that the
plaintiff must establish by a preponderance of evidence
that his injury was caused by defendant’s tortious con-
duct. [T]he reason for the exception is the injustice of
permitting proved wrongdoers, who among them have
inflicted an injury [on] the entirely innocent plaintiff,
to escape liability merely because the nature of their
conduct and the resulting harm has made it difficult or
impossible to prove which of them has caused the harm.
‘‘The provisions of [§ 433 B] (3) are not to be gainsaid
on the ground that they are contrary to the doctrine
requiring [the plaintiff to prove all the elements of the
cause of action]. They are set forth as limited exceptions
to that doctrine. These exceptions are supported by the
interest of justice and are so limited and structured that
it is [evident] that they do not represent a disguised
overturning or undermining of the main doctrine. So
far as [§ 433 B] (3) is concerned [the court is] satisfied
that it is fairly supported by precedents reaching the
indicated result as in the interest of justice and conso-
nant with sound common law.
‘‘The effect of shifting the burden of proof to the
defendants will . . . arise [only] if the jury should
decide that it is satisfied that [the] plaintiff has estab-
lished by a preponderance of the evidence that both
defendants were wrongdoers . . . and that one or
another was the cause of [the plaintiff’s injury], but is
unable to find from a preponderance of the evidence
which defendant [caused the injury]. Then the burden
will shift to each defendant to absolve itself of liability,
either for the purpose of avoiding a verdict for the
plaintiff or for avoiding a claim of contribution by the
other defendant. If neither defendant can prove [that]
it did not cause the [plaintiff’s injury], they would both
be liable.’’ (Footnotes omitted; internal quotation marks
omitted.) Bowman v. Redding & Co., supra, 449 F.2d
967–68.
We therefore see no reason why our adoption of
the alternative liability rule should be understood as a
return to our past system of joint and several liability,
pursuant to which any one of the defendants could have
been liable for the entire judgment at the option of the
plaintiff. It is not. To the contrary, we view the rule as
being fully compatible with our modern apportionment
scheme. Indeed, when subject to the alternative liability
rule, the defendants fare better under the apportion-
ment approach because, in the event they are unable
to absolve themselves of liability, the law requires that
the plaintiff’s damages be apportioned equally among
them, with each defendant liable for only his or her
proportionate share. See General Statutes § 52-572h (c).
Finally, the defendants assert that, if we adopt the
alternative liability doctrine for cases involving fact pat-
terns like the present one, we nevertheless should not
apply it retroactively to their conduct because they were
not on notice that we would recognize the doctrine
and because it would impose a substantial hardship on
them. We disagree.
‘‘Traditionally . . . in cases of civil tort liability in
which new causes of action are recognized, the new
theory of liability is applied to the parties in the case’’;
Clohessy v. Bachelor, 237 Conn. 31, 57, 675 A.2d 852
(1996); see also Campos v. Coleman, 319 Conn. 36, 62,
123 A.3d 854 (2015) (judicial decisions generally apply
retroactively to pending cases); and only in exceptional
circumstances will we deviate from that general rule.
See Campos v. Coleman, supra, 62. Thus, to establish
that the alternative liability doctrine should be applied
prospectively only, the defendants must demonstrate
that applying the doctrine retroactively to them ‘‘would
produce substantial inequitable results, injustice or
hardship.’’ Ostrowski v. Avery, 243 Conn. 355, 378 n.18,
703 A.2d 117 (1997). The defendants have identified
no such facts or circumstances that would render the
retroactive application of the alternative liability rule
in the present case unfair or unduly harsh, and, import-
antly, there is no basis for a claim that applying the
rule retrospectively would violate or compromise any
legitimate reliance interest of the defendants. See, e.g.,
Mueller v. Tepler, 312 Conn. 631, 655–56, 95 A.3d 1011
(2014); Clohessy v. Bachelor, supra, 57 and n.15; Hopson
v. St. Mary’s Hospital, 176 Conn. 485, 495–96 and n.5,
408 A.2d 260 (1979). In fact, it would be facetious to
suggest that any of the defendants, each of whom care-
lessly disposed of their cigarettes, would have acted
any differently if the law had been different. Because
the defendants have identified no persuasive reason
why the alternative liability rule that we adopt today
should not be applied to them, we reject their claim
that the rule should be applied prospectively only.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.
1
The alternative liability doctrine also has been adopted in the Third
Restatement of Torts. See 1 Restatement (Third), Torts, Liability for Physical
and Emotional Harm § 28 (b), p. 399 (2010). Because the treatment of the
doctrine in the Restatement (Third) is materially identical to the treatment
of the doctrine contained in the Restatement (Second), we refer to the
Restatement (Second) for purposes of our analysis.
2
The defendants appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3
In embracing the alternative liability doctrine, the Restatement (Second)
provided the following illustration, which mirrors the facts of Summers: ‘‘A
and B, independently hunting quail, both negligently shoot at the same time
in the direction of C. C is struck in the face by a single shot, which could
have come from either gun. In C’s action against A and B, each of the
defendants has the burden of proving that the shot did not come from his
gun, and if he does not do so is subject to liability for the harm to C.’’ 2
Restatement (Second), supra, § 433 B, illustration (9), p. 447.
4
Unlike other courts that have been urged to adopt the alternative liability
rule, the Oregon Supreme Court declined to do so, primarily because, as
that court maintained, ‘‘the adoption of any theory of alternative liability
requires a profound change in fundamental tort principles of causation, an
adjustment rife with public policy ramifications’’ that are better left to the
judgment of the legislature. Senn v. Merrell-Dow Pharmaceuticals, Inc.,
305 Or. 256, 271, 751 P.2d 215 (1988). The Oregon Supreme Court stands
virtually alone in categorically rejecting the rule. For the reasons set forth
in this opinion, we disagree with that court’s concerns that the exception,
when applied in the limited and unusual circumstances for which it was
intended, contravenes or otherwise undermines fundamental tort principles.