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Theories of Causation
  • 1 Howard v. Wal-mart Stores, Inc.--"The 'More-Likely-Than-Not' Standard for Causation"

    Should courts hold that a defendant cannot be proved to “cause” the harm, if the evidence merely supports that it was “more likely than not” that the defendant caused the harm?

    1
    160 F.3d 358
    2
    Dolores HOWARD, Plaintiff-Appellee,
    v.
    WAL-MART STORES, INC., Defendant-Appellant.
    3
    No. 98-1781.
    4
    United States Court of Appeals,
    Seventh Circuit.
    5
    Argued Oct. 8, 1998.
    Decided Nov. 3, 1998.
    6

    Joan M. Lockwood (argued), Gray & Ritter, St. Louis, MO, for Plaintiff-Appellee.

    7

    James E. DeFranco (argued), Neville, Richards, DeFranco & Wuller, Belleville, IL, for Defendant-Appellant.

    8

    Before POSNER, Chief Judge, and CUMMINGS and ESCHBACH, Circuit Judges.

    9
    POSNER, Chief Judge.
    10

    We have before us a charming miniature of a case. In 1993 Dolores Howard, age 65, slipped and fell in a puddle of liquid soap that someone--no one knows who--had [160 F.3d 359] spilled on the floor of the aisle in a Wal-Mart store in Cahokia, Illinois. She was injured, and brought suit against Wal-Mart in an Illinois state court; the defendant removed the case to federal district court. At the time the suit was brought and removed, there was enough possibility that Howard's injury was severe (the injured leg had become infected) to lift the case just over the then $50,000 threshold for a diversity suit. But later she recovered and at trial asked for only $25,000 in damages. The jury awarded her $18,750. Wal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential effect in future slip-and-fall cases of the judge's refusal to grant judgment for Wal-Mart as a matter of law. We don't tell people whether to exercise their rights of appeal, but we feel impelled to remind Wal-Mart and its lawyer that a district court's decision does not have precedential authority, e.g., Old Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998, 1003-04 (7th Cir.1996); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.1995)--let alone a jury verdict or an unreported order by a magistrate judge (by any judicial officer, for that matter) refusing on unstated grounds to throw out a jury's verdict.

    11

    The issue on appeal is whether there was enough evidence of liability to allow the case to go to a jury, and, specifically, whether there was enough evidence that an employee rather than a customer spilled the soap. See Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434 (1958); Wind v. Hy-Vee Food Stores, Inc., 272 Ill.App.3d 149, 208 Ill.Dec. 801, 650 N.E.2d 258, 262 (1995). Even if a customer spilled it, Wal-Mart could be liable if it failed to notice the spill and clean it up within a reasonable time. Donoho v. O'Connell's, Inc., supra, 148 N.E.2d at 437-38; Swartz v. Sears, Roebuck & Co., 264 Ill.App.3d 254, 201 Ill.Dec. 210, 636 N.E.2d 642, 654 (1993). It has a legal duty to make its premises reasonably safe for its customers. But there is no evidence with regard to how much time elapsed between the spill and the fall; it may have been minutes. Wal-Mart is not required to patrol the aisles continuously, but only at reasonable intervals. See Culli v. Marathon Petroleum Co., 862 F.2d 119 (7th Cir.1988) (collecting Illinois cases). So Howard could prevail only if there was enough evidence that an employee spilled the soap to satisfy the requirement of proving causation by a preponderance of the evidence.

    12

    The accident occurred in the morning, and morning is also when the employees stock the shelves. The defendant presented evidence that the puddle of liquid soap on which Howard slipped was about the diameter of a softball and was in the middle of the aisle. Howard testified that it was a large puddle on the right side of the aisle and "when I got up, I had it all over me, my coat, my pants, my shoes, my socks." An employee could have dropped one of the plastic containers of liquid soap on the floor while trying to shelve it and the container could have broken and leaked. Or the cap on one of the containers might have come loose. Or the containers might have been packed improperly in the box from which they were loaded onto the shelves and one of them might have sprung a leak. Alternatively, as Wal-Mart points out, a customer, or a customer's child, might have knocked a container off the shelf. A curious feature of the case, however, is that the container that leaked and caused the spill was never found. Howard argues, not implausibly, that a customer who had come across a damaged container or had damaged it would be unlikely to purchase it, having lost part of its contents--a large part, if Howard's testimony was believed; and the jury was entitled to believe it--or indeed to put it in her shopping cart and risk smearing her other purchases with liquid soap. In light of this consideration, we cannot say that the jury was irrational in finding that the balance of probabilities tipped in favor of the plaintiff, though surely only by a hair's breadth.

    13

    Is a hair's breadth enough, though? Judges, and commentators on the law of evidence, have been troubled by cases in which the plaintiff has established a probability that only minutely exceeds 50 percent that his version of what happened is correct. The concern is illuminated by the much-discussed bus hypothetical. Suppose that the plaintiff is hit by a bus, and it is known that 51 percent of the buses on the road [160 F.3d 360] where the plaintiff was hit are owned by Bus Company A and 49 percent by Company B. The plaintiff sues A and asks for judgment on the basis of this statistic alone (we can ignore the other elements of liability besides causation by assuming they have all been satisfied, as in this case); he tenders no other evidence. If the defendant also puts in no evidence, should a jury be allowed to award judgment to the plaintiff? The law's answer is "no." See Richard W. Wright, "Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts," 73 Ia. L. Rev. 1001, 1050-1051 (1988), and cases cited there. Our hypothetical case is a variant of Smith v. Rapid Transit, 317 Mass. 469, 58 N.E.2d 754 (1945), where the court held that it "was not enough" "that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident." Id. at 755. Kaminsky v. Hertz Corp., 94 Mich.App. 356, 288 N.W.2d 426 (1979), is sometimes cited as being contrary to Smith, but this is not an accurate reading. Besides the fact that the corresponding percentages were 90 percent and 10 percent, there was nonstatistical evidence pointing to the defendant's ownership of the truck that had caused the accident.

    14

    Smith and Kaminsky involve explicitly probabilistic evidence. But as all evidence is probabilistic in the sense of lacking absolute certainty, all evidence can be expressed in probabilistic terms, and so the problem or dilemma presented by those cases is general. The eyewitness might say that he was "99 percent sure" that he had seen the defendant, and jurors appraising his testimony might reckon some different probability that he was correct. What powers the intuition that the plaintiff should lose the bus case is not the explicitly probabilistic nature of the evidence, but the evidentiary significance of missing evidence. If the 51/49 statistic is the plaintiff's only evidence, and he does not show that it was infeasible for him to obtain any additional evidence, the inference to be drawn is not that there is a 51 percent probability that it was a bus owned by A that hit the plaintiff. It is that the plaintiff either investigated and discovered that the bus was actually owned by B (and B might not have been negligent and so not liable even if a cause of the accident, or might be judgment-proof and so not worth suing), or that he simply has not bothered to conduct an investigation. If the first alternative is true, he should of course lose; and since it may be true, the probability that the plaintiff was hit by a bus owned by A is less than 51 percent and the plaintiff has failed to carry his burden of proof. If the second alternative is true--the plaintiff just hasn't conducted an investigation--he still should lose. A court shouldn't be required to expend its scarce resources of time and effort on a case until the plaintiff has conducted a sufficient investigation to make reasonably clear that an expenditure of public resources is likely to yield a significant social benefit. This principle is implicit in the law's decision to place the burden of producing evidence on the plaintiff rather than on the defendant. Suppose it would cost the court system $10,000 to try even a barebones case. This expenditure would be worthless from the standpoint of deterring accidents should it turn out that the bus was owned by B. It makes sense for the court to require some advance investigation by the plaintiff in order to increase the probability that a commitment of judicial resources would be worthwhile.

    15

    These objections to basing a decision on thin evidence do not apply to the present case. Not only is there no reason to suspect that the plaintiff is holding back unfavorable evidence; it would have been unreasonable, given the stakes, to expect her to conduct a more thorough investigation. This is a tiny case; not so tiny that it can be expelled from the federal court system without a decision, but so tiny that it would make no sense to try to coerce the parties to produce more evidence, when, as we have said, no inference can be drawn from the paucity of evidence that the plaintiff was afraid to look harder for fear that she would discover that a customer and not an employee of Wal-Mart had spilled the soap.

    16

    We conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a reported appellate decision, unlike the [160 F.3d 361] decision of the district court, will have precedential authority!

    17

    AFFIRMED.

  • 2 Stubbs v. City of Rochester--"The Sewage in the Drinking Water Case"

    When there are multiple possible causes of the plaintiff’s harm—only some of which the defendant is responsible for—should the plaintiff be required to disprove all other possible causes in order to prevail?

    1

    226 N. Y 516

    2
    THOMAS E. STUBBS, Appellant,
    3
    v.
    4
    CITY OF THE ROCHESTER, Respondent.
    5

    Municipal corporations — negligence — typhoid fever alleged to have been caused by drinking contaminated water — when evidence in action to recover therefor sufficient to warrant submission to jury — improper dismissal of complaint.

    6

    1. If two or more possible causes exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable, the party has complied with the spirit of the rule that when there are several possible causes of injury for one or more of which a defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible.

    7

    2. Plaintiff brings this action, asserting that he became ill by reason of drinking contaminated water supplied by the defendant, and seeks to recover damages by reason thereof. Upon examination of the evidence, held, that the case on the part of plaintiff was not so lacking in proof as matter of law that his complaint should be dismissed, but that the most favorable inferences deducible from the plaintiff's evidence were such as would justify a submission of the facts to a jury as to the reasonable inferences to be drawn therefrom, and a verdict rendered thereon for either party would rest not in conjecture but upon reasonable possibilities.

    8

    Stubbs v. City of Rochester, 174 App. Div. 904, reversed.

    9

    (Argued March 13, 1919; decided July 15, 1919.)

    10

    APPEAL from a judgment entered September 13, 1916, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling plaintiffs' exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of defendant upon the nonsuit granted at the Trial Term.

    11

    The nature of the action and the facts, so far as material, are stated in the opinion.

    12

    [517] Charles Van Voorhis for appellant. It was a question of fact for the jury to determine whether or not the plaintiff contracted typhoid fever from drinking contaminated water. (Lyons v. S. A. R. R. Co., 89 Hun, 374; 152 N. Y. 654; Purcell v. Lanere, 14 App. Div. 33; People v. Benham, 160 N. Y. 402.)

    13

    B. B. Cunningham, Corporation Counsel (Charles L. Pierce of counsel), for respondent. Plaintiff's case as to how he contracted his typhoid rests wholly upon conjecture. (Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Link v. Sheldon, 136 N. Y. 9; Ruppert v. B. H. R. R. Co., 154 N. Y. 90; Webber v. T. A. R. R. Co., 12 App. Div. 512.)

    14
    HOGAN, J.
    15

    This action was brought by plaintiff to recover damages alleged to have been sustained by him due to drinking contaminated water from the defendant's domestic service.

    16

    During the year 1910 and for many years prior thereto the defendant under legislative authority was engaged in the business of selling water to its inhabitants. A duty was imposed on the commissioner of public works to provide an abundant supply of wholesome water for public and private use, to devise plans and sources of water supply, to plan and supervise the distribution of water through the city and to protect it against contamination. The city has two systems of water supply. One for potable water brought by it from Hemlock lake some distance south of the city to reservoirs near the city and thence distributed by gravity to consumers. That system is known as the Hemlock system. The second or Holly system for fire purposes in the business district, the water being pumped from the Genesee river near the center of the city into a separate set of distributing pipes. The Holly system carried a pressure of from sixty to seventy pounds to the square inch which [518] in case of fire was increased to one hundred thirty  pounds. The pressure in Hemlock system was about fifty pounds to the square inch. The Erie canal ran through the city. A number of lift bridges, including one at Brown street, crossed the same. The bridges were raised by admitting water under pressure to a cylinder forcing a piston out and raising the platform of the bridge. The pipes furnishing water to the cylinders were "Y" shaped; one branch being connected with the Hemlock system and the second branch with the Holly system. Gates were installed in each pipe at a point about 20 feet back from the place of connection with the "Y" pipe to control the flow of waters therein. If the gates in both pipes were open at one time both systems would discharge water into the "Y" pipe. If one gate was closed the discharge would be confined to the other pipe. The employees of the city had possession of the wrenches or keys by which these gates could be opened or closed, the water for operating the bridge being furnished by the city.

    17

    A check valve was installed in the Hemlock pipe at a point between the gate and the piston pipe for the purpose of preventing the water from the Holly system entering the pipe of the Hemlock system as it otherwise would when the gates in both pipes were open because of the greater pressure in the Holly system; thus when the pressure of the water is toward the piston pipe the valve will open and permit the water to flow freely, but when the stronger pressure is from the opposite direction the valve closes and remains closed so long as the greater pressure remains. When closed the water from the Holly system is prevented from entering the Hemlock system pipes.

    18

    Above the point where the defendant pumps water from the Genesee river into the Holly system mains a large quantity of sewage from villages and public institutions is discharged into the Genesee river and at times [519] water from the Erie canal overflows into the river. The evidence disclosed that a number of drains from buildings in the city also discharged into the river. The water used for the purpose of operating the lift bridges is shut off in the fall of the year at the close of navigation on the Erie canal and turned on when navigation is resumed, usually about May. In the year 1910 the gates of the two systems located near the Brown street bridge were opened by direction of the superintendent of water works of the city. In June, 1910, numerous complaints were received by the superintendent from inhabitants, consumers of the Hemlock water, residing or employed in the vicinity of Brown street bridge, in substance that the water was roily, dirty and had an offensive odor. No attention was given the matter of complaints until one resident called upon the health commissioner of the city and the latter accompanied the complainant to her home, observed the condition of the water, took a sample of the water from the faucet and observed that it looked and smelled badly. He thereupon had it analyzed by a chemist which analysis disclosed a serious condition of contamination. The health officer thereupon notified the public through the newspapers not to drink the water without boiling it, continued his investigation, collected water from a number of houses and caused an analysis to be made of same which disclosed contamination and he thereupon notified the water department that the Hemlock water was contaminated. The latter department started an investigation on October 2d, upwards of three months after many complaints had been made to it, and upon arrival at the Brown street bridge discovered the source of contamination to be at that point and that water from the Holly system was being discharged through the Hemlock system pipes. The water was thereupon shut off and a few days later the discovery was made that there was no check valve in the pipe of the Hemlock system and the water of the [520] two systems commingled and were being furnished to consumers in that locality as potable waters.

    19

    The plaintiff, a resident of the city of Rochester and a machinist, was employed by a firm whose place of business was at the; corner of Allen and Piatt streets, about one block from the Brown street bridge. The factory was supplied with Hemlock lake water for drinking purposes. Plaintiff drank the water from time to time, using his individual drinking glass. He was taken ill September 6, 1910, with typhoid fever and was sick in bed for six weeks and unable to work for some twelve weeks. Asserting that his illness was caused by reason of drinking contaminated water supplied by the city, he seeks to recover damages by reason thereof. The evidence disclosed upon the trial clearly established that the water furnished by the defendant for potable purposes in the locality of the Brown street bridge was contaminated. The negligence of the defendant charged is — that it carelessly and negligently permitted poisonous and polluted water from the Genesee river to flow through the Holly system mains and pipes into the mains and pipes of the Hemlock system thereby polluting and contaminating the Hemlock water rendering the same dangerous to life and health of the inhabitants of the city in violation of its duty to furnish pure and wholesome water; a failure to inspect the pipes from time to time to discover whether or not the check valve was in place and operating and failure to exercise diligence in a discovery of the nature and source of the contamination following many complaints as to the condition of the water. The facts adduced upon the trial were ample to permit a consideration of the question of negligence of the city by a jury and if found by a jury to sustain such finding. It is argued by counsel for the city that plaintiff's case as to how he contracted typhoid fever rests wholly upon conjecture. Upon the appeal to the Appellate Division after the first trial the latter [521] court reversed the judgment recovered by plaintiff upon that ground. (163 App. Div. 245.) Upon the appeal to the Appellate Division in the case under review two of the justices, who concurred for reversal on the first appeal on the ground stated, dissented from the decision affirming the nonsuit at Trial Term, presumptively indicating that the evidence upon the second trial had been supplemented by additional testimony and rendered the earlier decision distinguishable from the present record.

    20

    The important question in this case is — did the plaintiff produce evidence from which inference might reasonably be drawn that the cause of his illness was due to the use of contaminated water furnished by defendant. Counsel for respondent argues that even assuming that the city may be held liable to plaintiff for damages caused by its negligence in furnishing contaminated water for drinking purposes, (a) that the evidence adduced by plaintiff fails to disclose that he contracted typhoid fever by drinking contaminated water; (b) that it was incumbent upon the plaintiff to establish that his illness was not due to any other cause to which typhoid fever may be attributed for which defendant is not liable. The evidence does disclose several causes of typhoid fever which is a germ disease, the germ being known as the typhoid bacillus, which causes may be classified as follows:

    21

    First. Drinking of polluted water. Second. Raw fruits and vegetables in certain named localities where human excrement is used to fertilize the soil are sometimes sources of typhoid infection. Third. The consumption of shell fish, though not a frequent cause. Fourth. The consumption of infected milk and vegetables. Fifth. The house fly in certain localities. Sixth. Personal contact with an infected person by one who has a predilection for typhoid infection and is not objectively sick with the disease. Seventh. Ice if affected with typhoid bacilli. Eighth. Fruits, vegetables, etc., washed in infected water. [522] Ninth. The medical authorities recognize that there are still other causes and means unknown. This fact was developed on cross-examination of physicians called by plaintiff.

    22

    Treating the suggestions of counsel in their order, (a) that the evidence fails to disclose that plaintiff contracted typhoid fever by drinking contaminated water. The plaintiff having been nonsuited at the close of his case is entitled to the most favorable inference deducible from the evidence. That plaintiff on or about September 6th, 1910, was taken ill and very soon thereafter typhoid fever developed is not disputed. That he was employed in a factory located one block distant from the Brown street bridge in which Hemlock lake water was the only supply of water for potable and other purposes, and that the water drawn from faucets in that neighborhood disclosed that the water was roily and of unusual appearance is not questioned. And no doubt prevails that the Holly system water was confined to the main business part of the city for use for fire purposes and sprinkling streets and is not furnished for domestic or drinking purposes.

    23

    The evidence of the superintendent of water works of the city is to the effect that Hemlock lake water is a pure wholesome water free from contamination of any sort at the lake and examinations of the same are made weekly; that the Holly water is not fit for drinking purposes taken as it is from the Genesee river. Further evidence was offered by plaintiff by several witnesses, residents in the locality of Brown street bridge, who discovered the condition of the water at various times during July, August and September and made complaint to the water department of the condition of the same. Dr. Goler, a physician and health officer of the city, was called by plaintiff and testified that in September when complaint was made to him by a resident of the district he went to the locality, visited houses in the [523] immediate neighborhood, found that the water drawn from the faucet of the Hemlock supply looked badly and smelled badly. He took a sample of the water to the laboratory and had it examined by a chemist who found that it contained an increase in solids and very many times, that is twenty to thirty times as much chlorine or common salt as is found in the domestic water supply — the presence of chlorine in excessive quantities indicates contamination in that quantity, bad contamination and usually sewage contamination. Further examination followed in the district. Water was collected from various houses and a large number of samples, perhaps less than one hundred, but over twenty-five. The examination continued and the wedge of the city outlined by the river and city line and Magne street had the domestic water supply contaminated in the same way. An examination of the water of the Holly system disclosed the same, very similar in quantity of chlorine or common salt contents as the domestic water supply in the houses in the immediate neighborhood of Oak and Frank streets, but further north from what was eventually the point of greatest contamination the amount of chlorine grew less. About the following day, the source of contamination having been discovered, the doctor made an investigation as to the reported cases of typhoid fever in the city in the months of August, September and October for the purpose of determining the number of cases, where the cases came from, what gave rise to it, and he stated that in his opinion the outbreak of typhoid was due to polluted water, contaminated as he discovered afterwards by sewage. In answer to a hypothetical question embracing generally the facts asserted by plaintiff the witness testified that he had an opinion as to the cause of the infection of plaintiff and such opinion was that it was due to contaminated water.

    24

    Doctor Dodge, of the faculty of the University of [524] Rochester, a professor of biology, also bacteriologist of the city of Rochester, about October first made an analysis of samples of water taken from No. 58 Warehouse street and from the Holley system, corner of Oak and Piatt streets. The analysis of the water from Warehouse street disclosed the number of bacteria to be 880 cubic centimeter. The analysis of the Holly water disclosed four thousand bacteria cubic centimeter. An analysis of the Hemlock water at the University disclosed approximately 150 to 200. While his examination did not disclose any colon bacillus, it did disclose some evidence of the same. Dr. Brady, the physician who attended the plaintiff, and Dr. Culkin both testified that in their opinion the plaintiff contracted typhoid fever from drinking polluted water.

    25

    Plaintiff called a witness who resided on Brown street about two minutes' walk from the bridge and proved by her that she drank water from the Hemlock mains in the fall of 1910 and was ill with typhoid fever. Thereupon counsel for defendant stipulated that fifty-seven witnesses which the plaintiff proposed to call will testify that they drank water from the Hemlock taps in the vicinity of the district west of the Genesee river and north of Allen street in the summer and fall of 1910 and during said summer and fall suffered from typhoid fever, that in view of the stipulation such witnesses need not be called by plaintiff and the stipulation shall have the same force and effect as though the witnesses had been called and testified to the facts.

    26

    The plaintiff resided with his wife some three miles distant from the factory where he was employed. The water consumed by him at his house outside the infected district was Hemlock water. The only water in the factory was Hemlock water and he had there an individual cup from which he drank. He was not outside of the city during the summer of 1910. Therefore, the only water he drank was in the city of Rochester.

    27

    [525] A table of statistics as to typhoid fever in the city of Rochester for the years 1901-1910, inclusive, was produced by the health officer and received in evidence. That exhibit was the subject of comment in the opinion of Justice FOOTE upon the first appeal. The fact is evident from a perusal of his opinion that upon the first trial plaintiff did not undertake to establish the number of cases of typhoid fever in the district where the water was contaminated as compared with the total number of cases in the city in 1910, which evidence was supplied upon this trial. The statistics disclose that the number of typhoid cases in the city in 1910 was 223, an excess of 50 cases of any year of the nine years preceding. Recalling that complaints as to water commenced in the summer of 1910 and as shown by the evidence that typhoid fever does not develop until two or three weeks after the bacilli have been taken into the system, in connection with the fact that the source of contamination was not discovered until October, the statistics disclose that of the 223 cases of typhoid in the city in the year 1910, 180 cases appear during the months of August, September, October and November as against forty-three cases during the remaining eight months; thirty-five of which were prior to August and eight in the month of December, two months after the source of contamination of the water was discovered.

    28

    The evidence on the trial discloses that at least fifty-eight witnesses, residents of the district, drank the contaminated water and suffered from typhoid fever in addition to plaintiff; thus one-third of the 180 cases during the months stated were shown to exist in that district.

    29

    Counsel for respondent asserts that there was a failure of proof on the part of plaintiff in that he did not establish that he contracted diser.se by drinking contaminated water and in support of his argument cites a rule of law, that when there are several possible causes of injury [526] for one or more of which a defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible. He submits that it was essential for plaintiff to eliminate all other of seven causes from which the disease might have been contracted. If the argument should prevail and the rule of law stated is not subject to any limitation the present case illustrates the impossibility of a recovery in any case based upon like facts. One cause of the disease is stated by counsel to be "personal contact with typhoid carriers or other persons suffering with the disease, whereby bacilli are received and accidentally transferred by the hands or some other portion of the person or clothes to the mouth." Concededly a person is affected with typhoid some weeks before the disease develops. The plaintiff here resided three miles distant from his place of employment and traveled to and from his work upon the street car. To prove the time when he was attacked with typhoid, then find every individual who traveled on the same car with him and establish by each one of them that he or she was free from the disease even to his or her clothing is impossible. Again the evidence disclosed that typhoid fever was caused by sources unknown to medical science. If the word of the rule stated is to prevail plaintiff would be required to eliminate sources which had not yet been determined or ascertained. I do not believe the rule stated to be as inflexible as claimed for. If two or more possible causes exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable the party has complied with the spirit of the rule.

    30

    The plaintiff was employed in the immediate locality where the water was contaminated. He drank the water daily. The consumption of contaminated water is a very [527] frequent cause of typhoid fever. In the locality there were a large number of cases of typhoid fever and near to sixty individuals who drank the water and had suffered from typhoid fever in that neighborhood appeared as witnesses on behalf of plaintiff. The plaintiff gave evidence of his habits, his home surroundings and his method of living, and the medical testimony indicated that his illness was caused by drinking contaminated water. Without reiteration of the facts disclosed on the trial I do not believe that the case on the part of plaintiff was so lacking in proof as matter of law that his complaint should be dismissed. On the contrary the most favorable inferences deducible from the plaintiff were such as would justify a submission of the facts to a jury as to the reasonable inferences to be drawn therefrom, and a verdict rendered thereon for either party would rest not in conjecture but upon reasonable possibilities.

    31

    The judgment should be reversed and a new trial granted, costs to abide the event.

    32

    CARDOZO, POUND and ANDREWS, JJ., concur; HISCOCK, Ch. J., CHASE and MCLAUGHLIN, JJ., dissent.

    33

    Judgment reversed, etc.

  • 3 Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.--"The Multiple Fires Case"

    Should courts regard a defendant’s conduct as a liable cause of the plaintiff’s harm if the harm would have occurred irrespective of the defendant’s conduct?

    1

     146 Minn. 430

    2
    JACOB ANDERSON
    v.
    MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY AND OTHERS.[1]
    3

    No. 21,855.

    4

    Supreme Court of Minnesota.

    5

    September 17, 1920.

    6

    [432] Action transferred to the district court for St. Louis county to recover $2,016.50 for destruction of plaintiff's property by fire started from defendant's engines. The facts are stated in the opinion. The case was tried before Dancer, J., who at the close of the evidence denied defendants' separate motions for directed verdicts and plaintiff's motion for a directed verdict on the question of liability, and a jury which returned a verdict for $2,162.83. From an order denying their motions for judgment notwithstanding the verdict or for a new trial, defendants appealed. Affirmed.

    7

    John L. Erdall, H. B. Fryberger, W. A. Hayes and H. B. Dike, for appellants.

    8

    Clayton J. Dodge, Hugh J. McClearn, and Devaney & McGrath, for respondent.

    9

    LEES, C.

    10

    This is a fire case brought against the defendant railway company and the Director General of Railroads. For convenience, we shall refer to the railway company, throughout this opinion, as the defendant. Plaintiff had a verdict. The appeal is from an order denying a motion in the alternative for judgment notwithstanding the verdict or for a new trial. The complaint alleged, that early in August, 1918, sparks from one of defendant's locomotive engines set a fire on or near the right of way, and that this fire spread until it finally reached plaintiff's land, where it destroyed some of his property.

    11

    The answer was a general denial followed by an allegation that, if plaintiff was damaged by fire, the fire was not due to any act of defendant, was of unknown origin, and, by reason of extraordinary weather conditions, became a huge conflagration.

    12

    The reply put these allegations in issue.

    13

    Plaintiff's case in chief was directed to proving that in August, 1918, one of defendant's engines started a fire in a bog near the west side of plaintiff's land; that it smoldered there until October 12, 1918, when it [433] flared up and burned his property shortly before it was reached by one of the great fires which swept through northeastern Minnesota at the close of that day.

    14

    Defendant introduced evidence to show that on and prior to October 12 fires were burning west and northwest of and were swept by the wind towards plaintiff's premises. It did not show how such fires originated, neither did it clearly and certainly trace the destruction of plaintiff's property to them.

    15

    By cross-examination of defendant's witnesses and by his rebuttal evidence, plaintiff made a showing which would have justified the jury in finding that the fires proved by defendant were started by its locomotive on or near its right of way in the vicinity of Kettle river.

    16

    After plaintiff's evidence in rebuttal had been put in, the jury were excused to enable defendant's counsel to confer, who later announced they had decided to rest without offering additional evidence. Each of the parties then moved for a directed verdict. Both motions were denied. In making his motion, plaintiff's counsel stated that it was his position that there was no evidence tending to show that any other fire than the bog fire, or fires set by defendant in the vicinity of Kettle river, destroyed plaintiff's property. The Kettle river fires were the subject of much of the testimony received. They started west or northwest of plaintiff's land several days prior to October 12.

    17

    Numerous special instructions were requested. One of defendant's was that plaintiff had predicated his cause of action upon the bog fire; that, if he failed to establish that cause of action, he could not recover, even though the jury should find that other fires referred to in the evidence were started by defendant's locomotives and contributed to the burning of his property. This request was denied.

    18

    In instructing the jury, the court said in part:

    19

    "Plaintiff claims that if there was any fire coming from the west or the northwest of the bog fire, that burned over plaintiff's property, that that fire or fires were set by the defendant's engines, and that defendant is responsible for such fires and the result thereof. * * *

    "If you find from the evidence * * * that the property of the plaintiff was injured or destroyed by fire communicated directly or indirectly [434] by (defendant's) locomotive engines * * * your deliberations, so far as the question of liability of the defendant is concerned, are at an end, and the next question for you to consider is the amount of plaintiff's damages. * * *

    "If plaintiff's property was damaged by fire originally set by one of defendant's locomotives, then defendant became liable for such damage and was not released from such liability by anything that happened thereafter. * * *

    "If the plaintiff was burned out by some fire other than the bog fire, which other fire was not set by one of the defendant's engines, then, of course, the defendant is not liable. * * * If the plaintiff was burned out by fire set by one of defendant's engines in combination with some other fire not set by any of its engines," then it is liable.

    "If you find that other fire or fires not set by one of the defendant's engines mingled with one that was set by one of the defendant's engines, there may be difficulty in determining whether you should find that the fire set by the engine was a material or substantial element in causing plaintiff's damage. If it was, the defendant is liable, otherwise it is not. * * *

    "If you find that bog fire was set by the defendant's engine and that some greater fire swept over it before it reached the plaintiff's land, then it will be for you to determine whether that bog fire * * * was a material or substantial factor in causing plaintiff's damage. If it was * * * defendant is liable. If it was not, defendant is not liable. If the bog fire was set by one of the defendant's engines, and if one of defendant's engines also set a fire or fires west of Kettle river, and those fires combined and burned over plaintiff's property, then the defendant is liable."

    20

    These instructions were given on Saturday, December 27. During the afternoon of the following Sunday the jury returned into court and asked whether the defendant would be liable if they should find that one of defendant's engines set a fire west of Kettle river and that on October 12 this fire was of sufficient magnitude to play an important part in any consolidation of fires that may have occurred between it and other fires coming from the west and northwest, and the consolidated fires passed [435] over plaintiff's land and did the damage. The court answered that it would be liable. None of defendant's counsel were present when the Sunday proceedings took place. On the following Monday the jury returned a sealed verdict in favor of plaintiff. Proper exception was taken to the Sunday instructions to the jury.

    21

    Subsequently plaintiff asked and was allowed to amend his complaint by alleging in substance that the Kettle river fire or fires and the bog fire destroyed his property.

    22

    Defendant contends that it made a showing from which the jury might have found that fires of unknown origin, coming from the west and northwest, destroyed plaintiff's property independently of the bog fire. For the purposes of the case we will assume that there was sufficient evidence to warrant the jury in so finding. To meet an issue tendered by the answer and supported by defendant's proof, plaintiff was properly allowed to offer evidence tending to show that these fires were set by defendant's engines. Defendant does not seriously contend that such evidence was not admissible. Citing Gracz v. Anderson, 104 Minn. 476, 116 N. W. 1116, it takes the position that, while the evidence may have been admissible to overcome its defense, it was not admissible to establish a substantive ground of recovery, because the complaint makes no reference to these fires. The case cited states the familiar rule that, when issues not made by the pleadings are litigated by consent, an amendment should be ordered as a matter of course, and, when not voluntarily litigated, the matter rests in the discretion of the court, and holds that the court did not abuse its discretion in refusing to allow an amendment which introduced as a substantive ground of recovery acts of negligence not originally pleaded but brought out in the evidence. By a long line of decisions, it is settled that the amendment of pleadings is a matter lying almost wholly in the discretion of the trial court, and its action will not be reversed on appeal except for a clear abuse of discretion. 2 Dunnell, Minn. Dig. § 7696. An important consideration is the probability of the opposite party having been misled and so deprived of an opportunity to meet the newly pleaded matter with evidence. That consideration was not present here. Defendant had an opportunity to offer evidence of how the Kettle river fires originated and what became of them, but deliberately decided not to go into the subject.

    23

    [436] Another consideration is the manner in which evidence, to which an amendment relates, came into the case. If it was brought out by the party opposing the amendment, or in response to an issue he introduced by his pleadings or proof, there should be greater freedom in allowing the amendment. The variance between the original pleading and the proof in such a case ought to be disregarded because it cannot mislead. G. S. 1913, § 7784; Reed v. Great Northern Ry. Co. 76 Minn. 163, 78 N. W. 974.

    24

    The scope of the amendment is also to be considered. If the amendment to a complaint does not introduce an entirely new cause of action, but merely changes the statement of the manner in which the injury was inflicted, it is ordinarily permissible. 2 Dunnell, Minn. Dig. § 7709.

    25

    The stage the action has reached is also to be considered. Ordinarily the earlier an amendment is applied for the more liberally will it be granted. However, if a variance has not misled the adverse party to his prejudice, an amendment will be permitted even after an appeal to this court. Adams v. Castle, 64 Minn. 505, 67 N. W. 637.

    26

    We are satisfied that there was no abuse of discretion in granting the application to amend the complaint to make it conform to proof properly received to meet the defense. The amendment did not introduce an entirely new cause of action. It added to and changed the statement of the time and place of origin of the fire which was first alleged to have inflicted the injury. The cause of action remained the same — the wrongful destruction of plaintiff's property by a fire or fires started by defendant. The field to be covered by the evidence was enlarged, but it was defendant's pleading and proof that made it necessary to enlarge it. The evidence received was admissible. Plaintiff could have recovered without it under his original pleading and proof. In this respect the case is unlike Guerin v. St. Paul F. & M. Ins. Co. 44 Minn. 20, 46 N. W. 138.

    27

    A more difficult question is presented by the apparent conflict between the general charge to the jury and the Sunday instructions. Portions of the charge justify the assertion that there is no conflict. Other portions seem to justify the contrary assertion. The precise situation covered by the Sunday instructions may not have been in the mind of the court when the charge was given. The thought expressed in the general charge is this: Assume that defendant's engine did set the bog fire, but [437] that some greater fire swept over it before it reached plaintiff's land, then and in that event defendant is not liable, unless the bog fire was a substantial factor in causing plaintiff's damage. Defendant concludes that, by the greater fire referred to, the court meant the Kettle river fire for which defendant may have been responsible. With equal force it may be said that the court meant the great fires from the west, for which defendant may not have been responsible. As it seems to us, there was at most an obscurity, due to the omission after the words "greater fire" of the qualifying phrase "set by one of defendant's engines" or "not set by one of defendant's engines." The jury were left in doubt as to defendant's responsibility if the Kettle river fire "played an important part of any consolidation of fires between it" and the west and northwest fires. That subject had not been covered in the general charge. The Sunday instructions were supplemental to and not contradictory of the general charge, and the assertion that the law as stated on Saturday ceased to be a law after the court's utterance on Sunday, is not borne out by the record. We are of the opinion that the law was correctly stated in the Sunday instructions, assuming that by pleadings or voluntary litigation of the issue to which it was directed, the question was in the case. Even if the law had theretofore been otherwise stated, it has been held that it is permissible for a judge to change his mind during the trial of a case. Scheurer v. Great Northern Ry. Co. 141 Minn. 503, 170 N. W. 505.

    28

    Complaint is made because the Sunday proceedings took place in the absence of defendant's counsel. Fillippon v. Albion Vein Slate Co. 250 U. S. 76, 39 Sup. Ct. 435, 63 L. ed. 853, is authority in defendant's favor upon this point. If the question were an open one in this state, it might be conclusive, but a contrary rule has long obtained here. Hudson v. Minneapolis L. & M. Ry. Co. 44 Minn. 52, 46 N. W. 314; Reilly v. Bader, 46 Minn. 212, 48 N. W. 909; Strite G. P. Co. v. Lyons, 129 Minn. 372, 152 N. W. 765. Although the court is not obliged to notify counsel when the jury returns for further instructions, we believe it has been the custom of district judges to send notice to counsel before such instructions are given, unless the trial would be unreasonably delayed if this were done. The custom has our unqualified approval, not [438] only as a proper exercise of judicial courtesy, but for the better reason that if one of the parties is represented while the other is not and the latter is the loser, he is almost certain to believe that an unfair advantage of him has been taken and his confidence in the impartial administration of justice is shaken.

    29

    In addressing the jury, one of plaintiff's counsel said that, if there was a verdict for defendant, the bill of costs will be so exorbitant it will ruin plaintiff. An exception was promptly taken. Before the jury retired, defendant entered of record a waiver of all costs and disbursements it might tax if it prevailed. The statement of plaintiff's counsel was improper. It was doubly so in view of the fact that the trial had occupied several weeks, the testimony of more than a hundred witnesses had been taken, and there would be a formidable bill of costs that one of the parties must pay. But the misconduct could hardly prejudice defendant after it announced that it waived costs. For this reason, there was no error in denying a new trial on this ground.

    30

    Defendant requested the court to instruct that the extraordinary and unusual wind and weather conditions on October 12, 1918, were such an efficient and independent cause of plaintiff's damage as to relieve defendant from liability. The refusal so to instruct is assigned as error. Defendant relies on the rule that a wrongdoer may escape liability by showing that a new cause of plaintiff's injury intervened between the wrongful act and the final injurious result thereof, provided such intervening cause was not under the wrongdoer's control, could not by the exercise of reasonable diligence be anticipated as likely to occur and except for which the injury would not have been done to plaintiff.

    31

    We are of the opinion that the rule does not apply to the facts in this case. There was a drought in northern Minnesota throughout the summer and fall of 1918. It was protracted and severe. There was a high wind on October 12. Towards evening and for a short time it reached a velocity of 76 miles an hour. The fire or fires which destroyed plaintiff's property had been burning a long time. Defendant was bound to know that the greater the drought the greater danger of the spread of a fire. Strong winds are not uncommon in Minnesota. The evidence showed that a fire, when sufficiently extensive, will create air currents as the heated air rises and cooler air rushes in to take its place. The operation of [439] this natural law tends to increase the violence of any wind that may be blowing in a region of fires.

    32

    The court was justified in refusing to give the requested instruction for another reason. Neither the drought nor the wind would or could have destroyed plaintiff's property without the fire. The result was one which might reasonably be anticipated as a natural consequence of setting a fire and permitting it to burn for days in a country abnormally dry. Hence, if it can be said that an extraordinary wind coupled with an unusual drought were proximate causes of the injury, still the fire was a material concurring cause, without which there would have been no damage to plaintiff, and defendant is liable under the established rules of law. Moore v. Townsend, 76 Minn. 64, 78 N. W. 880; Bibb B. C. Co. v. Atchison, T. & S. F. Ry. Co. 94 Minn. 269, 102 N. W. 709, 69 L.R.A. 509, 110 Am. St. 361, 3 Ann. Cas. 450; Campbell v. City of Stillwater, 32 Minn. 308, 20 N. W. 320, 50 Am. Rep. 567; Johnson v. Northwestern Tel. Exch. Co. 48 Minn. 433, 51 N. W. 225; McDowell v. Village of Preston, 104 Minn. 263, 116 N. W. 470, 18 L.R.A.(N.S.) 190; O'Connor v. Chicago, M. & St. P. Ry. Co. 163 Wis. 653, 158 N. W. 343. That the independent concurring cause was what is termed an act of God, does not alter the rule. Bibb v. Atchison, T. & S. F. Ry. Co. supra; Northwestern C. M. Co. v. Chicago, B. & Q. Ry. Co. 135 Minn. 363, 160 N. W. 1028; Sherm. & Red., Negligence, § 39; 22 R. C. L. 131.

    33

    Our attention is invited to a number of cases holding that if a fire has been spread beyond its natural limits by an unusual or extraordinary wind, carrying it to a place that would have been safe except for the wind, the person who set the fire is not liable because he could not reasonably have anticipated a wind of such a nature. Fent v. Ry. Co. 59 Ill. 349, 14 Am. Rep. 13; Marvin v. Ry. Co. 79 Wis. 140, 47 N. W. 1123, 11 L.R.A. 506; Hightower v. Ry. Co. 67 Mo. 726. These cases appear to be out of harmony with Krippner v. Biebl, 28 Minn. 139, 9 N. W. 671. They are also of doubtful application in view of our statute (G. S. 1913, § 4426), which creates liability irrespective of weather conditions, virtually makes railroad companies insurers against damage caused by fires set by their engines, Babcock v. Canadian Northern Ry. Co. 117 Minn. 434, 136 N. W. 275, Ann. Cas. 1913D, 924, and entirely eliminates the question of negligence. Trustees v. Chicago, M. & St. P. Ry. Co. 119 [440] Minn. 181, 137 N. W. 970; Home Ins. Co. v. Chicago, St. P. M. & O. Ry. Co. supra, page 240, 178 N. W. 608; Chicago & N. W. Ry. Co. v. Kendall, 186 Fed. 139, 108 C. C. A. 251.

    34

    The following proposition is stated in defendant's brief and relied on for a reversal:

    35

    "If plaintiff's property was damaged by a number of fires combining, one * * * being the fire pleaded * * * the others being of no responsible origin, but of such sufficient or such superior force that they would have produced the damage to plaintiff's property regardless of the fire pleaded, then defendant was not liable."

    36

    This proposition is based upon Cook v. Minneapolis, St. P. & S. S. M. Ry. Co. 98 Wis. 624, 74 N. W. 561, 40 L.R.A. 457, 67 Am. St. 830. In Farrell v. Minneapolis & R. R. Ry. Co. 121 Minn. 357, 141 N. W. 491, 45 L.R.A.(N.S.) 215, this court considered the Cook case, but refrained from expressing approval or disapproval of its doctrine. The supreme court of Michigan has referred to it as good law. Pluchak v. Crawford, 137 Mich. 509, 100 N. W. 765. The supreme court of Idaho says the opinion is logical and well reasoned, but the discussion is in a large measure theoretical and academic. Miller v. N. P. Ry. Co. 24 Idaho, 567, 135 Pac. 845, 48 L.R.A.(N.S.) 700, Ann. Cas. 1915C, 1214. Judge Thompson in his work on Negligence, Vol. 1, § 739, says that the conclusion reached is so clearly wrong as not to deserve discussion. If the Cook case merely decides that one who negligently sets a fire is not liable if another's property is damaged, unless it is made to appear that the fire was a material element in the destruction of the property, there can be no question about the soundness of the decision. But if it decides that if such fire combines with another of no responsible origin, and after the union of the two fires they destroy the property, and either fire independently of the other would have destroyed it, then, irrespective of whether the first fire was or was not a material factor in the destruction of the property, there is no liability, we are not prepared to adopt the doctrine as the law of this state. If a fire set by the engine of one railroad company unites with a fire set by the engine of another company, there is joint and several liability, even though either fire [441] would have destroyed plaintiff's property. But if the doctrine of the Cook case is applied and one of the fires is of unknown origin, there is no liability. G. S. 1913, § 4426, leaves no room for the application of a rule which would relieve a railroad company from liability under such circumstances. Moreover the reasoning of the court in McClellan v. St. Paul, M. & M. Ry. Co. 58 Minn. 104, 59 N. W. 978, leads to the conclusion that, regardless of the statute, there would be liability in such a case. We, therefore, hold that the trial court did not err in refusing to instruct the jury in accordance with the rule laid down in the Cook case.

    37

    In the foregoing discussion we have assumed, although it is doubtful, that the evidence was such that a foundation was laid for the application of the rule if it was otherwise applicable.

    38

    The contention that the Director General of Railroads is the only proper defendant is contrary to the holding in Lavalle v. Northern Pac. Ry. Co. 143 Minn. 74, 172 N. W. 918, 4 L.R.A. 1659; Gowan v. McAdoo, 143 Minn. 227, 173 N. W. 440; Palyo v. Northern Pacific Ry. Co. 144 Minn. 398, 175 N. W. 687; and Ringquist v. Duluth, M. & N. Ry. Co. 145 Minn. 147, 176 N. W. 344.

    39

    The further contention that, when he is joined with a railroad company as a defendant, section 10 of the Federal Control Act (U. S. Comp. St. 1918, § 3115¾j) does not authorize an action against him, because it is in effect a suit against the United States authorized by the act only to enforce common-carrier liabilities, cannot be sustained. In the Palyo case, where it was held that the director general might be made defendant, the liability sought to be enforced was not a common-carrier liability. The Ringquist case, adhering to the views expressed in Palyo v. Northern Pacific Ry. Co. was a fire case. The provisions of the so-called Transportation Act of February 28, 1920, indicate pretty clearly that Congress did not intend, by section 10 of the Control Act, to limit the right to sue the director general to such causes of action as arise from his operation of the railroads as common carriers. See sections 202 and 206 of the later act.

    40

    We find no error requiring a reversal, and hence the order appealed from is affirmed.

    41

    [1] Reported in 179 N. W. 45.

  • 4 Brown v. Wal-Mart--"The Phantom Tortfeasor"

    Should a defendant’s liability be excused if the action of an unknown intervening party seems to be a more substantial cause of the plaintiff’s injury?

    1

    12 S.W.3d 785

    2
    Joey BROWN, as next friend and natural guardian of Mitchell W. Brown, Appellee,
    v.
    WAL-MART DISCOUNT CITIES, Appellant.
    3

    Supreme Court of Tennessee, at Nashville.

    4

    January 31, 2000.

    5

    Tracy Shaw, Alice Margaret Essary, Howell & Fisher, Nashville, for Appellant.

    6

    John A. Day, Donald Capparella, Branham & Day, Nashville, W. Charles Doerflinger, Lawrenceburg, for Appellee.

    7
    OPINION
    8
    RILEY ANDERSON, Chief Justice.
    9

    We granted the application for permission to appeal in this slip and fall case to decide the issue of whether the defendant can attribute fault to an unidentified, or "phantom," tortfeasor.

    10

    In this case, the plaintiff was injured when he slipped on ice and water that had been spilled on the floor in defendant's store. The defendant argued that the jury should be allowed to consider the fault of the unidentified tortfeasor responsible for spilling the ice and water.

    11

    The trial judge instructed the jury that it could consider the fault of the unidentified tortfeasor, and the jury found that the plaintiff had sustained damages in the total amount of $2,625.00. The jury assigned 30% of fault to the defendant and 70% of fault to the unidentified tortfeasor. Upon the plaintiff's motion for a new trial, however, the trial judge issued an order assigning 100% of plaintiff's damages to defendant, finding that it had erred in allowing the jury to assign fault to the unidentified tortfeasor. Accordingly, the trial judge overruled the motion for new trial and held the defendant liable for the entire judgment.

    12

    The Court of Appeals affirmed the trial court's judgment, emphasizing the jury's finding that the defendant was negligent and holding that the defendant should not be able to attribute any of the fault to an unidentified nonparty unless the defendant can prove the "existence" of the nonparty "whose fault contributed to the plaintiff's injuries by clear and convincing evidence." [12 S.W.3d 786] Because the defendant failed to do so, the Court of Appeals held that "the trial judge correctly attributed all the fault to the original defendant."

    13

    After our consideration of the record, the parties' arguments, and the applicable authority, we conclude that the defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn.Code Ann. § 20-1-119 (1994 & Supp.1999), even if the defendant establishes the nonparty's existence by clear and convincing evidence.

    14
    BACKGROUND
    15

    Three-year-old Mitchell Brown broke his ankle when he slipped and fell on ice and water in the vestibule of defendant Wal-Mart's store. At trial, Mitchell Brown's mother, Lisa Brown, testified that she entered the vestibule with her two young children and walked toward the pay telephone to make a call to her husband. As she proceeded to make the call, Ms. Brown saw that her children were standing in the middle of ice and water spilled on the floor. She testified that as soon as she stretched out her hand and told her children to come toward her, her son Mitchell fell. Ms. Brown also testified that when she first entered the store, she noticed a Wal-Mart employee standing at a door to the vestibule.

    16

    There was no evidence presented concerning who spilled the ice and water. According to the testimony of Mark Morgan, the assistant manager on duty at the time of the accident, both a cup and the ice on the floor were from Wal-Mart's self-serve fountain drink dispenser.

    17

    Morgan testified that Wal-Mart's policy was to restrict all drinks to the snack area of the store. Morgan conceded, however, that he was aware of customers carrying drinks throughout the store and that a customer could enter the store, purchase a drink, and leave through any of the store's exits without violating the policy to restrict drinks to the snack area. Moreover, Kevin Brewer, a Wal-Mart employee working on the day of the accident, testified that he could get fired if he were to stop anyone from leaving the snack area with a drink.

    18

    Brewer also testified that he was responsible for maintaining the safety of the vestibule. He stated that he had walked through the vestibule "probably within the last five minutes" before the accident occurred and that he had not seen any spills on the floor. Brewer claimed that when he cleaned up the spill after the accident, the ice cubes "were still in ice form ... still real hardened," so he believed that the spill had not been on the floor for a very long period of time.

    19

    At the close of the proof, the trial court instructed the jury that they must determine the fault, if any, of the parties.... What I'm talking about when I say "parties" in this case is the unknown—what the law calls an unknown tortfeasor. Wal-Mart's counsel argued to you about this person or persons who left this cup of ice on the floor—that unknown person.

    20

    The jury found that plaintiff suffered damages in amount of $2,625.00, and assigned 30% of the fault to Wal-Mart and 70% of fault to the "unknown person." Consequently, the court ordered that Wal-Mart pay the plaintiff $787.50.

    21

    The plaintiff filed a motion for a new trial, arguing that the trial court erred by allowing the jury to consider the fault of the unidentified nonparty. The trial court agreed with the plaintiff, stating that "there is no way the Plaintiff in the instant case could sue and obtain judgment against whomever left the cup of ice on the floor at Wal-Mart, because no one knows who to sue." Because the trial court was satisfied with the jury's assessment of plaintiff's total damages, it overruled the motion for a new trial but ordered that the judgment of $2,625.00 would "remain intact," which effectively assigned 100% of the fault to Wal-Mart.

    22

    [12 S.W.3d 787] On appeal, the Court of Appeals affirmed the trial court, stressing that the jury must have found that Wal-Mart had constructive notice of the dangerous condition. The Court of Appeals further reasoned, however, that the "phantom tortfeasor" defense is consistent with this Court's cases since our adoption of a modified version of comparative fault. Accordingly, the Court of Appeals held that "since the phantom tortfeasor defense can be easily abused, we think the original defendant should be required to prove the existence of a third party whose fault contributed to the plaintiff's injuries by clear and convincing evidence." Because the court found that the defendant had failed to do so, it concluded that "the trial judge correctly attributed all the fault to the original defendant."

    23

    We granted defendant Wal-Mart's application for permission to appeal.

    24
    DISCUSSION
    25

    The issue presented is a question of law, and our review is de novo with no presumption of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn.1996).

    26

    We begin our analysis with the Tennessee Rules of Civil Procedure, which govern complaints and answers. Wal-Mart argues that under the Tennessee Rules of Civil Procedure, a defendant need only describe another potential tortfeasor in an answer in order for the jury to attribute fault to such a tortfeasor. Tenn. R. Civ. P. 8.03. This rule states in pertinent part:

    27

    In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute ... comparative fault (including the identity or description of any other alleged tortfeasors).

    28

    Id. (emphasis added). According to Wal-Mart, the language "identity or description" could arguably encompass an unidentified comparative tortfeasor.

    29

    Rule 8.03 is a rule of pleading which allows a defendant to allege that a nonparty contributed to the plaintiff's damages, ultimately allowing the plaintiff to plead and serve, and the trier of fact to assign fault to, the comparative tortfeasor alleged in defendant's answer. Rule 8.03 contemplates that at the pleading stage, either the identity or a description of another potential tortfeasor is sufficient to initiate discovery. Cf. George v. Alexander, 931 S.W.2d 517, 521-22 (Tenn.1996) (reasoning that a defendant intending to argue that a nonparty was the cause in fact of plaintiff's injury must identify or describe the nonparty in strict adherence to Tenn. R. Civ. P. 8.03 because a plaintiff should be afforded timely notice of the other potential tortfeasor). Tennessee's case law and statutory law both indicate, however, that when pre-trial discovery fails to identify the "described" comparative tortfeasor alleged in defendant's answer, the defendant should not be allowed to argue, and the trier of fact should not be permitted to make a determination, that a percentage of fault should be attributed to the unidentified nonparty.

    30

    This Court expressed its concern regarding future cases involving nonparties when we adopted a modified version of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). In adopting comparative fault, we attempted to reconcile the plaintiff's interest in being made whole with the defendant's interest in paying only that percentage of damages for which that particular defendant is responsible. We anticipated, however, that situations would arise in which one of these interests must yield to the other and that many issues regarding "nonparty" tortfeasors must "await an appropriate controversy." Id. at 60 (opinion on petition to rehear). In this regard, we stated that:

    31

    fairness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the [12 S.W.3d 788] injury or damage for which recovery is sought.... However, in order for a plaintiff to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his complaint and caused process to be served on such additional person. Thereafter, the additional party will be required to answer the amended complaint.

    32

    Id. at 58 (emphasis added).

    33

    The legislature responded to our decision in McIntyre by enacting Tenn.Code Ann. § 20-1-119 to enable a plaintiff to plead and serve nonparties alleged in a defendant's answer as potential tortfeasors. This section applies when a defendant raises comparative fault as an affirmative defense and the statute of limitations would otherwise bar the plaintiff's cause of action against the comparative tortfeasor alleged in defendant's answer. Within ninety days of the filing of the defendant's answer alleging that a person not a party to the suit caused or contributed to the injury or damages for which the plaintiff seeks recovery, the plaintiff may either "amend the complaint to add such person as a defendant" or "institute a separate action against that person." Tenn.Code Ann. § 20-1-119(a)(1), (2). "Person" is defined as "any individual or legal entity." Tenn.Code Ann. § 20-1-119(f).

    34

    Accordingly, in providing that a plaintiff should either amend the complaint or institute a separate suit against the "person" alleged as a comparative tortfeasor in defendant's answer, Tenn.Code Ann. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity. See Ridings, 914 S.W.2d at 82 (stating that this section "contemplates that those persons to whom fault may be attributed are limited to those against whom liability for the plaintiff's damages may be asserted."). Contrary to the conclusion of the Court of Appeals, clear and convincing evidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process. In our view, unless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn.Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty.

    35

    Despite Tennessee's rules of pleading and statutory developments since McIntyre, Wal-Mart argues that the case of Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252 (Tenn.1997), permits the attribution of fault against a "phantom" tortfeasor. We disagree.

    36

    Snyder was a products liability case involving an employee who was injured by an allegedly defective product in the course and scope of his employment. In that case, we emphasized that a defendant product manufacturer should not "effectively be precluded from presenting a defense." Id. at 256. We reasoned:

    37

    A defense that the product was not defective or unreasonably dangerous when it left the defendants' control would not be credible unless the defendants were permitted to introduce evidence as to what actually happened to the product leading up to the incident that injured the plaintiff.

    38

    Id. Accordingly, we held that the jury could consider the immune employer's conduct in determining the cause in fact of plaintiff's injuries. The jury in Snyder, however, was precluded from assigning fault to a party against whom the plaintiff could not assert a cause of action. We therefore reject Wal-Mart's argument that Snyder demands a different outcome in this case.

    39

    From our review of other jurisdictions, it appears that the resolution of this issue of an unidentified, or "phantom," tortfeasor depends primarily upon how each jurisdiction interprets its own comparative fault statute and rules of pleading, and that there is not a clear majority rule. [12 S.W.3d 789] However, we find persuasive the policy reasons relied upon by the Superior Court of New Jersey, which is also a modified comparative fault state, in the case of Bencivenga v. J.J.A.M.M., Inc., 258 N.J.Super. 399, 609 A.2d 1299 (App.Div.1992). In holding that an unidentified tortfeasor may not be considered when apportioning fault, the court reasoned:

    40

    The amount of plaintiff's judgment and amount of defendant's liability will vary depending upon whether the absent-unnamed person's negligence is considered by the fact finder. Defendant, however, has a greater incentive to join and name additional potential tortfeasors or to see that they are identified.... Thus, defendant has significant incentive in naming and joining multiple tortfeasors so as to create the potential for diminishing defendant's percentage of liability.... Given that incentive, it is appropriate to place upon defendant the burden of finding and naming any additional person since it is to defendant's advantage to spread the risk or defeat the claim.

    41

    Id. at 1304. As the New Jersey court recognized, a defendant has a substantial interest in finding and naming all potential tortfeasors in order to diminish its percentage of fault. In our view, to allow a defendant to attribute fault to an unidentified nonparty would not only diminish a defendant's incentive to identify additional tortfeasors, cf. George, 931 S.W.2d at 521-22, but also would effectively impose a burden on the plaintiff to "defend" the unidentified nonparty.

    42

    Finally, in light of our conclusion that the trier of fact should not have been permitted to assign fault to an unidentified nonparty, we agree with the Court of Appeals that the trial judge did not err in assigning 100% of the fault to Wal-Mart upon the plaintiff's motion for a new trial. The trial judge did not usurp the role of the jury as we cautioned against in Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn.1997) (where trial court "correctly determined that it lacked the authority to reapportion ... fault in its role as thirteenth juror"). Rather, as the Court of Appeals reasoned, "the trial judge was assigning 100 percent of the damages assessed by the jury to Defendant in light of the legal conclusion that Defendant's fault could not be shared with an unknown tortfeasor." Accordingly, we affirm the Court of Appeals decision that Wal-Mart is liable for the entire judgment of $2,625.00.

    43
    CONCLUSION
    44

    After our review of the record, the parties' arguments, and applicable authority, we conclude that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn.Code Ann. § 20-1-119, even if the defendant establishes the nonparty's existence by clear and convincing evidence. Consequently, we affirm the Court of Appeals' judgment as modified on the separate grounds stated. Costs of appeal shall be paid by the defendant for which execution shall issue if necessary.

    45

    DROWOTA, BIRCH, HOLDER, BARKER, JJ., concur.

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