In the usual negligent injury case, the victim must prove that the bad guy was negligent, that the victim was injured, and that the bad guy’s negligence caused the injury. In some cases, we know that several persons were negligent, that the negligence caused the injury, but we cannot prove which of the bad guys actually caused the injury.
The law is not stupid. In such a case, the law will assume that all the negligent parties contributed to the injury, unless any of them can prove they did not. The burden of proof shifts to the defendants to prove that they were not the one who caused the victim’s injury.
The original case establishing this rule was Summers v. Tice, in which two hunters negligently fired shot guns in the general direction of the victim, and he got only one pellet in his eye. No one could determine which gun that one pellet came from. The California Supreme Court held that they were both liable, even though the victim could not prove which gun the pellet came from. The Supreme Court left open the opportunity for each of the hunters to try to prove that it was not his pellet or that it was the other hunter’s pellet. The court shifted the burden of proof to the defendants.
In the recent case of Mitchell v. Hutchinson, the plaintiff was driving his Ferrari in Dana Point, and ran over some large rocks which had fallen onto the road from the adjacent hillside. The rocks got attached to the underside of the low-slung car, causing personal injuries to the two occupants and extensive and expensive damage to the Ferrari.
Expert witnesses testified that the rocks could have come from any of three properties adjacent to the road. The trial court and the Court of Appeal that this situation could shift the burden of proof to the defendants to try to prove which of them was responsible for the rocks landing on the street. However, in this case, the plaintiff failed to prove that the three landowners had acted negligently in the manner in which each of them, separately, had maintained their respective hillsides.
Just because you don’t know which bad guy actually caused the harm to you or your property, do not give up. Sue them all and let the courts sort them out.