"Alternative Liability" Doctrine

Passengers in a minivan were injured in a two-car collision. The passengers sued both drivers of the vehicles. The jury found no negligence on the part of both drivers. The judge granted the passengers’ motion for retrial concluding “the jury’s finding…is unreasonable and against the manifest weight of evidence…” The defendants appealed the order for retrial.   The Appellate Court, 1st District reversed because “the jury could have found that the passengers failed to prove by a preponderance of the evidence that the drivers were negligent.” The verdicts were also not legally inconsistent or against the manifest weight of evidence.   Anderson v.Anderson, 2011 IL App (1st) 110034 (Sep. 30, 2011).

The court stated since this case involved plaintiffs suing multiple potential tortfeasers, the burdens of proof between innocent, injured parties must be discussed. This raises the “doctrine of alternative liability,” which the Illinois Supreme Court has adopted. Smith v. Eli Lilly & Co., 137 lll.2d 222 (1990).   Alternative liability may apply when two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joint defendants cause the injury. The burden of proof then shifts to each defendant to prove his innocence with respect to causation. However, the innocent plaintiff still must prove that each tortfeasor was negligent before the burden will shift. Wyscocki v. Reed, 222 Ill. App. 3d 268 (1991). 

Here, because the jury did not find negligence on the part of the drivers and because the jury could have found that that the plaintiffs failed to prove the negligence of both defendants, the use of the doctrine of alternative liability was unavailable.  

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