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Where Plaintiff Does Not Know Which of Two Defendants Distributed the Product Which Caused the Injury, the Doctrine of Alternative Liability Applies—Doctrine Explained

The Second Department determined the doctrine of alternative liability applied to a strict products liability case where it was not possible for the plaintiff to determine which of two defendants distributed the product. The doctrine places the burden on the defendants to demonstrate which of them distributed the product, and if that is not possible, the two defendants would be jointly and severally liable:

Generally, a plaintiff seeking to recover for injuries sustained due to the use of a product is required to prove that it was the defendant who placed the product that injured him or her into the stream of commerce … . However, the doctrine of alternative liability is “available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible” … .

Under that doctrine, where the conduct of two or more defendants is tortious, and ” it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one,'” the burden is placed on those defendants to prove that they did not cause the harm … . If the defendants cannot meet that burden, they are jointly and severally liable … . “Recovery under an alternative liability theory requires joinder of all the parties who could have been responsible for a plaintiff’s injuries” … . Silver v Sportsstuff, Inc., 2015 NY Slip Op 06232, 2nd Dept 7-22-15

 

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