Conn. Interlocal Risk Mgmt. Agency v. Jackson

• Decision Date: 17 September 2019
• Docket Number: SC 19946
• Citation: 214 A.3d 841,333 Conn. 206
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY v. Christopher JACKSON et al.

333 Conn. 206
214 A.3d 841

CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY
v.
Christopher JACKSON et al.

SC 19946

Supreme Court of Connecticut.

Argued November 9, 2018
Officially released September 17, 2019

214 A.3d 843

Heather J. Adams, with whom was Sarah F. D'Addabbo, Hartford, for the appellant (plaintiff).

James P. Sexton, Hartford, with whom were Danielle J.B. Edwards, Sergio C. Deganis, Cheshire, and Erin M. Field, for the appellees (defendants).

Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

PALMER, J.

333 Conn. 208

To prevail in a negligence action, a plaintiff 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, 212 A.3d 646 (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 Summers 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 (Second), Torts § 433 B (3), pp. 441–42 (1965).¹ We are persuaded that the doctrine is a sound one and therefore adopt it.

333 Conn. 209

The plaintiff, Connecticut Interlocal Risk Management Agency, as subrogee of its insured, the town of Somers (town), brought this action against the defendants, Christopher Jackson, Wesley Hall, and Erin Houle, claiming that their negligent disposal of cigarettes 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 establish 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

214 A.3d 844

so was a decision only this court, the Appellate Court or the legislature properly should make. We reverse the judgment of the trial court.

The following facts and procedural history are relevant 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 proceeded to explore the multistory structure while drinking alcohol and smoking cigarettes. Each of them smoked approximately five cigarettes, and each discarded 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

333 Conn. 210

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 precedent, "by shifting the burden of proof to the defendants," 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 defendants 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

333 Conn. 211

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 observation 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 defendants 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

214 A.3d 845

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 setting forth the standard of review. "[T]he scope of our appellate review depends [on] the proper characterization 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 conclusions 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.

333 Conn. 212

As we previously noted, the alternative liability doctrine, which was first articulated and adopted in Summers v. Tice , supra, 33 Cal. 2d at 80, 199 P.2d 1, 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 Summers , 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., at 82–83, 199 P.2d 1. 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., at 82–84, 199 P.2d 1. The California Supreme Court affirmed the trial court's judgment; id., at 88, 199 P.2d 1 ; 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., at 86–87, 199 P.2d 1.

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., at 85, 199 P.2d 1. 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...