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Taking Aim at Alternative Liability in the Post-Tort Reform Era

 
Three men are on a quail hunting expedition. During the expedition, two of the men negligently shoot at a quail. The third man is in the line of fire and is hit by one of the bullets. He files a negligence lawsuit against his two hunting companions. However, he cannot establish which of his two hunting companions fired the gunshot that injured him.
 
This was the situation presented in Summers v. Tice, 33 Cal.2d 80 (1948), the seminal case on the theory of alternative liability. In Summers, the Supreme Court of California concluded that when a plaintiff cannot establish which of two negligent defendants actually caused his injury, the burden must shift to the defendants to prove which defendant caused the plaintiff’s injuries. The Court explained that if the defendants cannot establish which defendant caused the plaintiffs injury, then the defendants are jointly and severally liable for the plaintiff’s injuries. The Summers Court reasoned that the defendants in that case were in the best position to determine who caused the plaintiff’s injury.
 
Michigan formally adopted the theory of alternative liability in Abel v. Ely Lilly & Co., 418 Mich. 311 (1984). In Abel, several daughters of women who had taken the synthetic estrogen product DES during pregnancy to prevent miscarriage sued several manufacturers of DES on the basis that the DES caused them to suffer cancerous or pre-cancerous lesions. However, many of the plaintiffs were unable to identify which of the DES manufacturers caused their injuries, i.e., which of the DES products their mothers had purchased.
 
The Michigan Supreme Court in Abel permitted the plaintiffs to proceed with their claims against the DES manufacturers. The Court explained that alternative liability applies when all defendants have acted tortuously, but only one unidentifiable defendant was the cause of the plaintiff’s injuries. When the defendants are unable to establish which defendant caused the plaintiff’s injuries, the defendants will be jointly and severally liable.
 
In 1995, approximately ten years after the Michigan Supreme Court decided Abel, the Michigan Legislature passed tort reform legislation, which abolished joint and several liability for most torts. Under tort reform, each defendant is only liable for the portion of the total damages award reflecting the defendant’s percentage of fault. The theory of alternative liability relies on the court’s ability to shift the burden of proof onto two or more defendants and hold them jointly and severally liable for the plaintiff’s injuries. Thus, the elimination of joint and several liability indicates that alternative liability is no longer a viable causation theory in Michigan.
 
Our office successfully represented one of the defendants in a recent Michigan Court of Appeals case in which the plaintiff raised the issue of alternative liability. In Carr v. Roger A. Reed, Inc., unpublished opinion of the Michigan Court of Appeals, issued June 20, 2017, the plaintiff was injured while repairing electrical components during the course of his employment. His work required him to clean the electrical components using hot paraffin wax. His employer used two different types of wax. The plaintiff was injured when the hot paraffin wax ignited. He then sued the suppliers and manufacturers of the two types of wax, but argued that he was not able to establish which of the two caused his injuries.
 
The Michigan Court of Appeals concluded that, even assuming the theory of alternative liability still applies in Michigan, the theory of alternative liability applies only when there is no evidence regarding which defendant caused the plaintiff’s injuries. In Carr, there was sufficient circumstantial evidence to create a question of fact as to one supplier, but not the other. Therefore, the Court concluded that the plaintiff’s case against the one supplier could proceed to trial, but the plaintiff lacked sufficient evidence of causation to proceed with his claim against the other supplier.
 
The Carr Court clarified that a plaintiff may not rely on the theory of alternative liability when the plaintiff is able to identify the cause of his or her injury. When the plaintiff has evidence that one of the two defendants caused his or her injury, the plaintiff must rely on traditional tort principles to establish causation. However, the Court declined to address the ultimate issue of whether alternative liability was implicitly abolished by the statutory elimination of joint and several liability, instead saving this issue for another day.
 
The legislative elimination of joint and several liability indicates that alternative liability is no longer a viable causation theory in Michigan. However, it is not completely clear whether a plaintiff can plead an alternative liability theory. Therefore, in defending a negligence claim, it is important to keep in mind that a plaintiff may raise the theory of alternative liability in an attempt to shift the burden of proof onto the defendants to establish which defendant caused his or her injuries.