2 Quick Torts Questions Forum

[jms116]

So if there are multiple possible defendants and there is no way to determine who did it but someone is negligent how does the court make its determination.

Ex. Case where I am walking through the woods, two people are hunting and both shoot in my general direction at same time with same type of bullet, both negligently. I am hit. Exact 50% chance each caused it, thus I cant satisfy my burden against either.

Second Example

Two negligently caused fires are burning but both would be insufficient to harm my home by themselves. They combine to harm my home.

We discussed both of these ideas in class and I am just a little uncertain as to how to handle these issues. It seemed like the idea was sort of a res ipsa move (have defendants prove that they didn't do it. BUT what if neither proves they didn't do it and it remains 50% that each caused my harm. Thus, I haven't satisfied my burden of proof)?

And what about the fires where neither by themselves would have been sufficient, thus it does not seem that they could be the proximate cause of any harm to me, regardless of their negligence.

Thanks guys

[keg411]

First is alternative liability. Basically P has a cause against both for joint and several liability unless one of the D's can prove that his carelessness did not cause the injury.
Test is:
1. P injured
2. Two D's acted individually and independently careless towards P in the same way
3. The carelessness by one of the D's caused the injury to P

Second is multiple necessary causes; two causes can combine to be the "but for" cause of P's injury. P is allowed to sue both D's jointly and severally for two D's who's carelessness combine to cause P's injury (j&s liability allowed for indivisible injuries).

[missinglink]

First one is Alternative Liability. See Summers v. Tice.

Inadequate proof of a causal relationship with defendant’s actions makes it impossible to determine causation. Some courts resolve the issue by shifting the burden of proof to the defendant.
Where two or more defendants commit substantially similar negligent acts, one of which caused the plaintiffs injury, the burden of proof shifts to each defendant to show that she did not cause the harm.

• When precise cause cannot be identified, plaintiff must prove to a preponderance:
a. Each defendant was negligent / breached a duty
b. Negligent act of one defendant was the cause of plaintiff’s injury
c. Injury could only result from negligent act of one of the defendants
d. But for the circumstances, plaintiff cannot reasonably identify which defendant’s negligence was the cause.
• Burden is then on defendant to prove that they were not the cause
• Every defendant must be before the court

[edit] beaten to the punch!

[ogurty]

In the first example, the court shifts the burden to the defendant. This is not like res ipsa, which is (usually) a permissible inference; if neither hunter exculpates himself, both are jointly & severally liable for the harm. This probably doesn't extend further than the very rare 50/50 case, because it contravenes traditional tort principles.

In the second example, you mentioned that neither could be the proximate cause, so I just wanted to point out that there is no proximate cause issue - either would obviously be the proximate cause because burning is the exact risk caused by a house on fire. The issue is but-for causation - neither fire is technically a but-for cause. Courts deal with this by using "substantial factor" or similar terminology instead of but-for causation. Again, a very small issue, limited to the very rare 2 fires type of case.

[los blancos]

Yup. Summers v. Tice. And If anyone else, like me, was practically confused about what each having full liability meant in terms of remedy, see Glannon.

[romothesavior]

So if there are multiple possible defendants and there is no way to determine who did it but someone is negligent how does the court make its determination.

Ex. Case where I am walking through the woods, two people are hunting and both shoot in my general direction at same time with same type of bullet, both negligently. I am hit. Exact 50% chance each caused it, thus I cant satisfy my burden against either.

Second Example

Two negligently caused fires are burning but both would be insufficient to harm my home by themselves. They combine to harm my home.

We discussed both of these ideas in class and I am just a little uncertain as to how to handle these issues. It seemed like the idea was sort of a res ipsa move (have defendants prove that they didn't do it. BUT what if neither proves they didn't do it and it remains 50% that each caused my harm. Thus, I haven't satisfied my burden of proof)?

And what about the fires where neither by themselves would have been sufficient, thus it does not seem that they could be the proximate cause of any harm to me, regardless of their negligence.

Thanks guys

Example 1: They are both liable, the burden shifts to the Ds to prove they didn't do it, and if they can't, they are held joint and severally liable for acting independently to create an indivisible harm. P can recover from either of them, and then they can sue each other for contribution.

Example 2: Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result if his act is a substantial factor, even though his act alone might not have caused it. So both could be held liable here.

Both of these are examples of situations where the court will modify the rules of cause in fact to avoid letting tortfeasors off the hook and ensure plaintiffs are made whole. Neither of these situations is a res ipsa case. (Also, you are confusing cause-in-fact with proximate cause in your OP.)

If you are struggling with these, you had better hit the books hard. I recommend the Torts EE. Good luck with finals.

[los blancos]

Btw fellas... Is the holding in Hotson v. Berkshire stating that loss of chance isn't a ground at all or does "balance of probabilities" mean 51%?

[jms116]

haha ya i got it. i didnt think it was actually res ipsa i was just making a stupid analogy. also recognized the cause-in-fact prox cause mix up when i posted it.

thanks for the help everybody