Which Defendant Was Negligent?

A shotgun approach may be adequate for filing a complaint, but it is not enough to prevail at trial.  When a lawsuit is filed, the plaintiff may not know who is actually responsible for whatever malady has befallen her.  If so, she should pursue discovery determine which defendant was actually negligent.  If she can only demonstrate a group of defendants was possibly negligent, summary judgment may result. This is distinguishable from damages, where the defendants may bear the burden of apportioning what damages arose from which negligent act.

Although apparently not specifically addressed in Nevada, numerous courts have concluded a plaintiff does not meet her burden to demonstrate a genuine issue of material fact where the probabilities are equal between multiple defendants.  Barbie v. Minko Constr., Inc.^[1] considered it where a mullion bar, a removable device separating two exterior doors, had been negligently replaced, fell, and injured a teacher.  The school where the accident occurred was being renovated.  “Minko was the construction manager on the project, and Comstock was a subcontractor.  Minko and Comstock each had keys which would unlock the mullion bar.  Numerous Fargo Public School District employees, including administrators, custodians and delivery personnel, also had keys to the mullion bar.”^[2]  Summary judgment was granted because the teacher could not identify anyone in particular as more likely responsible than another.

On appeal the only question was “which of the numerous individuals or entities with access and a key to the mullion bar breached its duty by failing to properly replace the mullion bar.”^[3]  The teacher “had the burden of proving that either Minko or Comstock breached its duty to safely replace the mullion bar.”^[4]  She could not meet that burden as the testimony she presented was equivocal and not based upon personal knowledge about how the mullion bar became unstable.  “If, based upon the evidence presented, it is equally probable that the negligence was that of someone other than the defendant, the plaintiff has not met her burden to establish a breach of duty by the defendant and summary judgment is appropriate.”^[5]
Barbie relied upon other authorizes to support this ruling.

It is never enough for the plaintiff to prove merely that the plaintiff has been injured by the negligence of someone unidentified.  Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant.  The purpose of this requirement is to link the defendant with the probability, already established, that the accident was negligently caused.  On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not established a case.^[6]

Investors Real Estate Trust Props. v. Terra Pac. Midwest, Inc.^[7] arose from a fire loss.  The district court granted summary judgment because the plaintiff “failed to present competent, admissible evidence that any breach of duty by Terra Pacific caused the fire and IRET’s resultant damages.”^[8]  The ruling was affirmed.

“[A] plaintiff must present affirmative evidence of proximate cause, and may not establish causation solely by discrediting other possible causes.”^[9]  “[P]roximate cause may be proved by the circumstances of a case if such circumstances permit a reasonable inference of a cause of injury for which the defendant is responsible, and at the same time exclude equally reasonable inferences of other causes for which the defendant is not responsible.”^[10]  “The plaintiff, having the burden of proof on this issue, must present some affirmative evidence that the defendant’s conduct caused the injury to allow the jury to find that the defendant proximately caused the plaintiff’s injury.”^[11]

If from the plaintiff’s evidence it is as probable that the injury and damage of which the plaintiff complains resulted from a cause for which the defendant is not responsible as it is that such injury and damage resulted from a cause for which the defendant would be responsible, a prima-facie case of proximate cause has not been made and the plaintiff cannot recover, since plaintiff’s recovery must be based upon more than mere speculation.^[12]

Patterson v. T. L. Wallace Constr., Inc. concerned a motorcyclist who was injured by debris on a road.^[13]  He asserted the debris came from a nearby construction site.  Throughout discovery, however, no evidence was obtained to link the debris to the construction site.  The district court granted summary judgment.  Plaintiff insisted the debris came from the construction site but “[t]his insistence is mere speculation, and it is likely that other contractors, members of the general public, or employees of the City of Hattiesburg created the hazardous condition that caused this accident.”^[14]

This ruling was affirmed.  The contractor had worked in the area several days before the accident, but “[n]o circumstantial evidence suggests [the contractor] caused the debris to accumulate on the Parkway.”^[15]

In Wade v. Cove Shipping Co. a worker opened a hatch to enter a ship’s cargo hold.^[16]  While in the hold, someone closed the hatch and the worker fell when trying to re-open it.  He filed suit but did not know who had closed the hatch.  Even assuming closing the hatch was a negligent act, “still plaintiff is under a burden to prove the identity of the person responsible for that act.”^[17]  “[P]laintiff did not know who placed the cover; he just guessed that someone in the employ of Cove Shipping Company, Metal Marine Associates, or Bender Shipbuilding and Repair Company did it. This conjecture, we respectfully observe, does not substitute for a fact establishing the identity of the tort-feasor.”^[18]

[1] 766 N.W.2d 458 (N.D. 2009).
[2] Id. at 460.
[3] Id. at 461.
[4] Id.
[5] Id. at 463.
[6] Id. at 461 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 39, at 248 (5th ed. 1984)).
[7] 686 N.W.2d 140 (N.D. 2004).
[8] Id. at 144.
[9] Id.
[10] Id. (citation omitted).
[11] Id. at 145 (citation omitted).
[12] Id. at 145 (quoting Bismarck Baptist Church v. Wiedemann Indus., Inc., 201 N.W.2d 434, 441 (N.D. 1972)).
[13] 133 So. 3d 325 (Miss. 2013).
[14] Id. at 332.
[15] Id.
[16] 521 So. 2d 1305 (Ala. 1988).
[17] Id. at 1308.
[18] Id.