Careless Smoking Causation Defense Goes Up in Smoke in Connecticut

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In Conn. Interlocal Risk Mgmt. Agency v. Jackson, 2019 Conn. LEXIS 230 (Sept. 1, 2019) (Conn. Interlocal), the Supreme Court of Connecticut considered a careless smoking case and whether, as a matter of first impression, Connecticut should adopt the alternative liability doctrine first set forth in Summers v. Tice, 199 P.2d 1 (Cal. 1948). Recognizing that the doctrine is a sound one, the court adopted it for cases proceeding in Connecticut.

In a negligence action involving multiple defendants, the general rule is that the plaintiff bears the burden of proving which specific defendant(s) caused his or her injury. There is an exception to this general rule called the “alternative liability” doctrine, which shifts the burden of proving causation from the plaintiff to the defendants when three criteria are satisfied. First, the plaintiff must demonstrate that all of the defendants acted negligently and harm resulted. Second, the plaintiff must show that all possible tortfeasors have been named as defendants in the lawsuit. Lastly, the plaintiff must establish that the tortfeasors’ negligence was substantially simultaneous in time and of the same character so as to create the same risk of harm. If the plaintiff is able to satisfy these criteria, the burden shifts to the defendants to prove that they were not responsible for the plaintiff’s injury. If the defendants fail to meet their burden, they will be held liable.

In Summers, a California case, the plaintiff filed a negligence action against two of his friends for accidentally shooting him with a shotgun while the three men were hunting. When a quail flew over the plaintiff’s head, the defendants both fired their shotguns in the plaintiff’s direction and the plaintiff was injured, but the plaintiff could not prove which defendant actually shot him. In addressing the defendants’ failure of proof/causation arguments, the court adopted the alternative liability doctrine, which shifted the burden to the defendants to prove that their respective shotgun blasts were not the cause of the plaintiff’s injuries.

The plaintiff in Conn. Interlocal faced similar proof of causation difficulties. In Conn. Interlocal, the subrogating insurance company filed a negligence action against three teenagers for causing a fire at an abandoned mill with a discarded cigarette. While exploring the vacant mill, the teens each tossed approximately five unextinguished cigarette butts onto the mill’s wooden floor. The trial court granted summary judgment in favor of the defendants because the plaintiff could not prove which specific defendant discarded the cigarette that caused the fire. On appeal, the case was transferred from the Connecticut Appellate Court to the state Supreme Court to examine the applicability of the alternative liability doctrine. The Supreme Court reversed the trial court’s holding and adopted the doctrine. In adopting the doctrine, the court relied on rationale from the Restatement (Second) of Torts, which stated: “[T]he reason for the exception is the injustice of permitting proved wrongdoers, whom among them have afflicted 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.”[1]

The Conn. Interlocal case is a significant ruling for plaintiffs as it provides a new theory of liability for cases involving multiple defendants in Connecticut. However, the alternative liability doctrine is only applicable in narrow circumstances, when all three criteria for the exception are satisfied. The alternative liability doctrine is specifically relevant for actions involving careless smoking fires since the evidence of ignition (e.g., cigarette butts, matches, etc.) is often destroyed and it is impossible to prove which specific cigarette/defendant caused the fire.

[1] Restatement (Second) of Torts, § 433B, comment f (1965).

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