Alternative Liability

Alternative liability is a doctrine that shifts the burden of proof when a plaintiff shows that each of several defendants acted wrongfully but cannot show which one caused the injury. Each defendant is then liable unless it proves that it did not cause the harm.

Origin

The doctrine comes from Summers v. Tice, a 1948 California Supreme Court case in which two hunters fired at the same time and one pellet hit the plaintiff; the court made both hunters prove which one did not cause the injury. It was later included in the Restatement (Second) of Torts.

Significance in Asbestos Context

Asbestos plaintiffs often face the problem the doctrine was meant to solve: a worker exposed to many brands over decades may not be able to prove which fibers caused the disease. Even so, most courts have been reluctant to apply alternative liability in asbestos cases. The doctrine usually requires that all the possible wrongdoers be before the court and that their conduct be similar, and asbestos exposures typically involve dozens of companies, some bankrupt or never sued, with products that differed in fiber type, content and how much dust they released. Courts have instead handled multiple-exposure cases mostly through other causation rules, such as the substantial factor test, and in a few contexts through related theories like market share liability. Alternative liability still appears in arguments and in law-school discussions of asbestos causation, and it explains why product identification evidence carries so much weight: without it, there is usually no shortcut around proving each defendant's part.

Example Sentence

The court refused to apply alternative liability because many other suppliers of the same pipe insulation were not parties to the case.

Related Terms

Burden of Proof, Market Share Liability, Substantial Factor Test, Product Identification, Joint and Several Liability, Specific Causation, Each and Every Exposure Doctrine

Notes

• The strongest asbestos cases name specific products and brands; write down every product name, label or supplier you remember.
• Coworkers who remember the same brands can help fill gaps in your own memory.