Conn. adopts alternative liability in mill-fire suit against teen smokers

The Connecticut Supreme Court adopted alternative liability in a case seeking to hold three smoking teens responsible for a vacant-mill fire.  The case is Connecticut Interlocal Risk Management Agency v. Jackson, No. SC-19946 (Conn. Sept. 17, 2019).  Here are the facts from the court opinion:

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.

Law students usually encounter “alternative liability” in the classic California case, Summers v. Tice, 199 P.2d 1 (Cal. 1948).  This multiple-liability concept allows a plaintiff to charge multiple defendants with responsibility for a wrong without establishing that any one of them was in fact responsible.  In other words, the doctrine engages a fiction as preferable to letting all defendants off the hook.

Beaver Creek quail hunting (Torrey Wiley CC BY 2.0)

In Summers, plaintiff was struck in the eye by shot as his two fellow hunters fired at quail.  It could not be determined to a preponderance of the evidence, i.e., more than 50% likelihood, which of the hunters actually fired the shot that struck the plaintiff.  But because both bore equal moral culpability under the circumstances, relative to the position of the plaintiff, it makes more sense to hold them both liable then to let both prevail.  A little shy of that result, technically, the actual effect of alternative liability is to shift the plaintiff’s burden to prove a defendant’s responsibility to a burden of each defendant to prove non-responsibility.

Alternative liability, as articulated in the Second Restatement of Torts and the Court (quoted here), pertains when: (1) “all of the defendants acted negligently and harm resulted,” (2) “all possible tortfeasors have been named as defendants,” and (3) “the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”  Alternative liability is a lawyer-at-cocktail-party favorite, but few cases have facts that can measure up to this stringent test.

Alternative liability had ramifications in the later development of narrow but important product liability doctrines, in cases in which plaintiffs struggle to link a single manufacturer among many with a particular injurious product—think in terms of a dangerous pesticide containing a mix of chemical compounds, each purchased from various sellers.  Some extension of the doctrine has been controversial in the scholarship and ill received in the courts, insofar as product liability is strict, that is, not arising upon proof of any legal or moral fault by a defendant seller.  It can seem, then, that strict product liability effectively penalizes participation in the marketplace.  Add to that the fiction of alternative liability, and it can be just too much for the conscientious economic conservative.

HT @ TortsProf Blog.  Images, by Jim Michaud, from the 2012 mill fire:

Conn. high court hears argument after non-dismissal of Sandy Hook parent suit against Alex Jones

As reported in my Sandy Hook update a couple of weeks ago, today was the day for Connecticut Supreme Court oral arguments over a discovery dispute in the Alex Jones case.  The Connecticut Supreme Court usually gets audio up within a day.  Check here. [UPDATE: Now posted and embedded below.]

Alex Jones (by Sean P. Anderson CC BY 2.0)

This is the defamation lawsuit against Jones and InfoWars brought by Sandy Hook parents for the broadcasters' assertions that the Sandy Hook school shooting was a hoax, perpetrated in media with the help of "crisis actors."  Megyn Kelly, making her mark after jumping ship from Fox, (in)famously interviewed Jones on this matter in 2017.  You can watch that weird-meets-weirder interview at NBC.  Kelly and NBC managed to infuriate both Jones and Sandy Hook advocates.  The latter objected to giving Jones the platform to sell his brand of crazy and included a few paragraphs on the interview under the "Campaign of Abuse" heading in the May 2018 complaint.

The case is Lafferty v. Jones, No. UWY-CV18-6046436-S.  The complaint is available from the Connecticut docket.  Besides defamation and defamation per se, plaintiffs claim false light, negligent and intentional infliction of emotional distress, deceptive trade practices under statute, and civil conspiracy on the common law claims.  After removal to and return from federal court, the Connecticut trial court allowed limited discovery over the defense's anti-SLAPP motion.  Thus we are in Hartford.

News coverage so far is lackluster.  "Lawyer Norman Pattis told the Connecticut Supreme Court on Thursday that Jones exercised his free speech rights," Dave Collins wrote for The AP (e.g., via WaPo) this afternoon.  To be fair, this appeal focuses on a discovery compliance dispute, which is tangled up in First Amendment considerations, but does not squarely present the anti-SLAPP problem.  The Hartford Courant has more detail on the merits and procedural posture.

Meanwhile...

Also as reported earlier, the Sandy Hook gun manufacturer liability suit against Remington is pending with a defense cert. petition in the U.S. Supreme Court, since the Connecticut Supreme Court allowed plaintiffs a narrow theory to circumnavigate Remington's federal statutory immunity under the Protection of Lawful Commerce in Arms Act (at The Savory Tort). That case is now Remington Arms Co. v. Soto, No. 18-A-1185.

Amici in Remington Arms piled in to the Court on September 3 and 4 and are collected on the case page at SCOTUSblog.  The NRA, 22 members of the U.S. House, the State of Texas, the National Shooting Sports Foundation, the Gun Owners of America, and Professors of Second Amendment Law filed briefs.  The latter comprise "Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Michael O’Shea (Oklahoma City), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), Eugene Volokh (UCLA), and Gregory Wallace (Campbell)," with counsel for the Firearms Policy Coalition, the Independence Institute, and the Cato Institute submitting the brief.

Oral Argument in Lafferty