CACI 434 Alternative Causation

New September 2003; Revised November 2019

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This instruction is based on the rule stated in the case of Summers v. Tice (1948) 33 Cal.2d 80, 86 [199 P.2d 1], in which the court held that the burden of proof on causation shifted to the two defendants to prove that each was not the cause of plaintiff’s harm.

•“When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers—both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless.” (Summers, supra, 33 Cal.2d 80 at p. 86.)

•“California courts have applied the [Summers] alternative liability theory only when all potential tortfeasors have been joined as defendants.” (Setliff v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1534–1535 [38 Cal.Rptr.2d 763].)

•“There is an important difference between the situation involved in Summers and the present case. There, all the parties who were or could have been responsible for the harm to the plaintiff were joined as defendants. Here, by contrast, there are approximately 200 drug companies which made DES, any of which might have manufactured the injury-producing drug.” (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 602 [163 Cal.Rptr. 132, 607 P.2d 924].)

•“According to the Restatement, the burden of proof shifts to the defendants only if the plaintiff can demonstrate that all defendants acted tortiously and that the harm resulted from the conduct of one of them. (Rest.2d Torts, § 433B, com. g, p. 446.) It goes on to state that the rule thus far has been applied only where all the actors involved are joined as defendants and where the conduct of all is simultaneous in time, but cases might arise in which some modification of the rule would be necessary if one of the actors is or cannot be joined, or because of the effects of lapse of time, or other circumstances.” (Sindell, supra, 26 Cal.3d at p. 602, fn. 16.)

•“Summers applies to multiple tortfeasors not to multiple defendants, and it is immaterial in this case that the matter went to trial only as against respondent, for A, B, and/or C was also a tortfeasor.” (Vahey v. Sacia (1981) 126 Cal.App.3d 171, 177 [178 Cal.Rptr. 559], original italics, footnote omitted.)

•“[Restatement Second of Torts] Section 433B, subdivision (3) sets forth the rule of Summers v. Tice, supra, 33 Cal. 2d 80, using its facts as an example. Comment h provides: ‘The cases thus far decided in which the rule stated in Subsection (3) has been applied all have been cases in which all of the actors involved have been joined as defendants. All of these cases have involved conduct simultaneous in time, or substantially so, and all of them have involved conduct of substantially the same character, creating substantially the same risk of harm, on the part of each actor. It is possible that cases may arise in which some modification of the rule stated may be necessary because of complications arising from the fact that one of the actors involved is not or cannot be joined as a defendant, or because of the effect of lapse of time, or because of substantial differences in the character of the conduct of the actors or the risks which they have created. Since such cases have not arisen, and the situations which might arise are difficult to forecast, no attempt is made to deal with such problems in this Section. The rule stated in Subsection (3) is not intended to preclude possible modification if such situations call for it.’ ” (Setliff, supra, 32 Cal.App.4th at p. 1535.)