Minnich v. Ashland Oil Co. ( 1984 )

J. P. Celebrezze, J.

In this case we are faced with determining whether Ohio should adopt the doctrine of alternative liability set forth in 2 Restatement of the Law 2d, Torts (1965) 441-442, Section 433(B)(3). For the following reasons, we have determined that fairness demands application of that doctrine to situations similar to the case at bar.

Section 433(B)(3) is an exception to the general rule that the burden of proof of proximate cause rests with the plaintiff. That section states:

“Where 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.”

The shifting of the burden of proof brought about by this doctrine avoids the “injustice of permitting proved wrongdoers, who among them have inflicted an injury upon 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.” 2 Restatement of the Law 2d, Torts (1965) 446, Section 433(B)(3), Comment f.

It should be emphasized that under this alternative liability theory, plaintiff must still prove: (1) that two or more defendants committed tortious acts, and (2) that plaintiff was injured as a proximate result of the wrongdoing of one of the defendants. Only then will the burden shift to the defendants to prove that they were not the cause of plaintiff’s injuries. This doctrine does not apply in cases where there is no proof that the conduct of more than one defendant has been tortious.

In recognizing the theory outlined above, we find it unnecessary to overrule this court’s decision in Gedra v. Dallmer Co. (1950), 153 Ohio St. 258 [41 O.O. 274]. Paragraph two of the syllabus in that case reads:

“* * * [I]f the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible.”

The Gedra rule was explained in Westinghouse Electric Corp. v. Dolly Madison Corp. (1975), 42 Ohio St. 2d 122, 127 [71 O.O.2d 85], as follows:

“* * * That rule merely states the logical principle that where several reasonable explanations of an event are possible, the disproof of all but one necessarily acts as the proof of that one, and there are cases where this method of proof is the only way in which plaintiff can make his case. The rule does not intrude on the jury’s role as the finder of facts, nor does it impose on a plaintiff the burden of always effectively eliminating all other possible causes in order to make his case, which would impose a burden of proof analogous to the burden in criminal cases of proof beyond a reasonable doubt. Rather, the rule holds that where the facts from which an inference of probable proximate cause must be drawn are such that it is as reasonable to infer other causes, plaintiff has failed to supply proof of probable cause.”

Though appellees argue, and the court of appeals accepted, the position that this court has, through its decisions in Gedra and Westinghouse, previously rejected the doctrine we adopt today, we find no support for that position. Both those cases are distinguishable from the case at bar in that they involve a single plaintiff and a single defendant, with allegedly multiple proximate causes for the plaintiff’s injuries. In the instant case, however, plaintiffs allege two negligent defendants and a single proximate cause. We thus find our decision in Gedra inapplicable.

The court of appeals below viewed the Restatement theory and the Gedra rule as conflicting. That court rejected the rule we adopt today, and applied Gedra, to affirm the trial court’s summary judgment for defendants. Consequently, no determination has been made as to whether either defendant committed a tortious act, or whether either defendant’s act was the proximate cause of appellant’s injuries. These issues must be decided by a trier of fact in order to apply the Restatement rule.

Accordingly, we reverse the decision of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. W. Brown, Locher and Holmes, JJ., dissent.