November 9, 2018
[Copyrighted Material Omitted]
from Superior Court in the judicial district of Tolland,
Heather J. Adams, with whom was Sarah F. DAddabbo, Hartford,
for the appellant (plaintiff).
P. Sexton, Hartford, with whom were Danielle J.B. Edwards,
Sergio C. Deganis, Cheshire, and Erin M. Field, for the
McDonald, DAuria, Mullins, Kahn and Ecker, Js.
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). We are persuaded
that the doctrine is a sound one and therefore adopt it.
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 plaintiffs
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
so was a decision only this court, the Appellate Court or the
legislature properly should make. We reverse the judgment of
the trial court.
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.
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.
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 plaintiffs 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 ...