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

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

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

POSNER, Chief Judge.

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.

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.

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.

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.

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.

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.

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!

AFFIRMED.

226 N. Y 516

THOMAS E. STUBBS, Appellant,

v.

CITY OF THE ROCHESTER, Respondent.

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.

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.

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.

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

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

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.

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

[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.)

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.)

HOGAN, J.

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

[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.

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.

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.

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.

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

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

Judgment reversed, etc.

 146 Minn. 430

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

No. 21,855.

Supreme Court of Minnesota.

September 17, 1920.

[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.

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

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

LEES, C.

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.

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.

The reply put these allegations in issue.

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.

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.

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.

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.

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.

In instructing the jury, the court said in part:

"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."

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.

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.

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.

[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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

"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."

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.

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.

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.

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.

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

[1] Reported in 179 N. W. 45.

12 S.W.3d 785

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

Supreme Court of Tennessee, at Nashville.

January 31, 2000.

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

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

OPINION

RILEY ANDERSON, Chief Justice.

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.

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.

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.

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."

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.

BACKGROUND

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.

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.

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.

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.

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.

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.

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.

[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."

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

DISCUSSION

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).

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:

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).

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

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.

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:

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.

Id. at 58 (emphasis added).

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).

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.

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.

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:

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.

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.

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:

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.

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.

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.

CONCLUSION

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.

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

Gale & Purciel, Joseph D. Taylor and Wm. A. Wittman for Appellants.

Werner O. Graf for Respondent.

CARTER, J.

Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated.

Plaintiff's action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff's direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as [83] the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent.

First, on the subject of negligence, defendant Simonson contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. (See, Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A.N.S. 134].)

Defendant Tice states in his opening brief, "we have decided not to argue the insufficiency of negligence on the part of defendant Tice." It is true he states in his answer to plaintiff's petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject.

Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. It is true that plaintiff suggested that they all "stay in line," presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff's position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826]; Rudd v. Byrnes, supra.) None of the cases cited by Simonson are in point.

The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries--the shooting by Tice or that by Simonson. Tice argues that there is [84] evidence to show that the shot which struck plaintiff came from Simonson's gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff's allegation in his complaint that he did not know which one was at fault--did not find which defendant was guilty of the negligence which caused the injuries to plaintiff.

Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and "That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused to and did lodge in plaintiff's upper lip." In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injury--or that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff's eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only.

It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. (Moore v. Foster, 182 Miss. 15 [180 So. 73]; Oliver v. Miles, 144 Miss. 852 [110 So. 666; 50 A.L.R. 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. 1120, 114 Am.St.Rep. 675].) The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to a third person (Saisa v. Lilja, 76 F.2d 380). These cases speak of the action of defendants as being in concert as the ground [85] of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated: "We think that ... each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." [Emphasis added.] (P. 668 [110 So.].) It is said in the Restatement: "For harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." (Rest., Torts, 876(b) (c).) Under subsection (b) the example is given: "A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B's bullet strikes C, a traveler on the road. A is liable to C." (Rest., Torts, 876 (b), com., illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: "If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be held by the jury to be a substantial factor in bringing it about." (Rest., Torts, 432.) Dean Wigmore has this to say: "When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. (b) ... The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how [86] much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. ..." (Wigmore, Select Cases on the Law of Torts, 153.) Similarly Professor Carpenter has said: "[Suppose] the case where A and B independently shoot at C and but one bullet touches C's body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff ... where the injury occurs as the result of one where more than one independent force is operating, and it is impossible to determine that the force set in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause." (20 Cal.L.Rev. 406.)

When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers--both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) There the court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to [87] defendants to explain the cause of the injury. It was there said: "If the doctrine is to continue to serve a useful purpose, we should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' " (P. 490.) Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury.

The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. There was an entire lack of such connection in the Hernandez case and there were not several negligent defendants, one of whom must have caused the injury.

Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. (See, Mosley v. Arden Farms Co., 26 Cal. 2d 213 [157 P.2d 372, 158 A.L.R. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 366 [274 P. 544]; 2 Cal.Jur. 10-Yr. Supp. Automobiles, 349; 19 Cal.Jur. 570-572.)

Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; [88] City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].) In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tort feasors, and hence the last-cited cases are distinguishable inasmuch as they involve independent tort feasors.

In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can--relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.)

It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the case under either theory. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.

The judgment is affirmed.

Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

[84 Cal.App.3d 871] [148 Cal.Rptr. 845] Floyd H. King, Long Beach, and Richard E. Ashbran, for plaintiff and appellant.

Buck, Molony, Nimmo & Ammirato, by Mark D. Rutter, Long Beach, for defendants and respondents Joseph Vince Company and Junice T. Mori.

Haight, Dickson, Brown, Bonesteel & Rigg, by Elliott D. Olson and Roy G. Weatherup, Los Angeles, for defendant and respondent American Fencers Supply Co.

BEACH, Associate Justice.

NATURE OF APPEAL:

Plaintiff appeals from judgment of non-suit in a personal injury action. Appellant's eye was injured when an opponent's sabre broke through a fencing mask worn by appellant during a fencing bout. He sued American Fencer Supply (American) as the alleged manufacturer of the sabre and Joseph Vince Co. and Junice T. Mori (Vince) as the manufacturer-supplier of the mask. The causes of action are founded upon products liability.

[84 CAL.APP.3D 872] FACTS:

The general facts are as follows: Appellant was participating in a fencing meet as a member of his college team. His opponent (Croddy) was using a sabre that was purchased either from American or Vince. During this and other meets, some of the team members including Croddy would sometimes use their own blades and sometimes use those of the school. Both Croddy and the school had purchased blades from both Vince and American. Immediately after the accident the blade used was examined by the coach of each team. One coach found the tip to be much thinner than a proper fencing regulation tip. The other coach found that it complied with the regulations then in effect. After the accident the blades were all placed back in the team bag of Croddy's school. The identity of the particular blade in question was thereby lost. It was not produced at trial, apparently being lost or mixed up with the others in the shuffle.

The face mask worn by appellant was produced at trial. It was tested and photographed and the test results and photographs were also produced. It had been purchased from Vince about one month before the accident. Judgment of non-suit was granted in favor of both defendants, the alleged blade manufacturer American and the admitted mask manufacturer-supplier Vince. Other significant specific facts will be related in appropriate parts of the discussion below.

ISSUES:

There is a significant difference between the case against the alleged blade manufacturer, American, and the case against the mask manufacturer, Vince. Each presents a different issue. They are (1) as to American: where a plaintiff's evidence establishes that one, but not both, of two defendants produced a defective product, but the evidence does not disclose which one, is that sufficient evidence to permit a jury to determine liability of either defendant? And (2) as to Vince: does evidence of an injury, received while engaged in an inherently dangerous sporting event which protective equipment was intended to guard against, establish a prima facie case of strict liability for improper design against the manufacturer of the equipment?

[84 CAL.APP.3D 873] OUR HOLDING:

We answer "no" to both questions, and we affirm the judgments as to both defendants.

DISCUSSION:

A

THE BLADE

1. The general rule on non-suits.

A non-suit may be granted only where, disregarding conflicting evidence on [148 Cal.Rptr. 846] behalf of defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. (Meyer v. Blackman, 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 381 P.2d 916; Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 646, 55 Cal.Rptr. 94.)

2. Defectiveness of the blade.

One witness who saw the actual blade at the time of the accident testified that the blade was narrower than regulations then permitted. Presumably this would then support an inference that the blade was sharp enough to pierce the mask.^[1] For the purposes of our discussion here we may accept that testimony as sufficient to establish substantial evidence to permit a jury to find liability for a defective product against the manufacturer. A blade so improperly thin and sharp that it could pierce the protective mask could be found to be a defective product under the rules of fencing. It is not the type of weapon intended to be used or expected to be encountered during a fencing contest.

3. Identity of the maker or supplier.

Irrespective of proving the defectiveness of the blade causing the injury to him, appellant further established only that the blade was made [84 Cal.App.3d 874] and supplied by either (a) American or by (b) Vince, not by both; but which one of the two was unknown. There was no evidence that the blade was in fact known to have been manufactured by American or to have been manufactured by Vince. Croddy the user could not recall whether at the time he used his own or a school blade, and both he and school purchased from both defendants. Croddy's coach was also unable to say from which source the blade came. This is insufficient evidence to permit the issue of liability to be presented to a jury. The jury on the basis of such evidence would be purely speculating as to who should be liable. There was not contradictory or conflicting evidence to be resolved that either defendant manufactured or produced the blade. The evidence was evenly divided as to who possibly could have been the supplier of the blade.

Thus, appellant failed to clear the first hurdle in establishing respondent American's liability for any defect in the subject sabre. He did not sufficiently identify the sabre as being a product of American.

In an annotation in 51 A.L.R.3d 1344, 1349, on product liability the applicable rule is stated as follows:

"Regardless of the theory which liability is predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product . . . ." (Footnotes omitted.)

No California cases have specifically considered this single issue but agreement with the above rule of law is implied in the holding of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, that a manufacturer is liable when He places a defective product in the hands of a consumer. Here, the sabre could have originated with either of two different sources of supply. This evidence is not sufficient to link American with Mr. Croddy's sabre by anything more than a chain of conjecture.

Appellant argues that when the evidence is equally balanced as to who supplied the alleged defective product, under the rule of Summers v. Tice,33 Cal.2d 80, 199 P.2d 1, 5 A.L.R.2d 91, the burden of proof should shift to respondent to establish who sold the product. [148 Cal.Rptr. 847] This argument has no merit. In Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, the plaintiff established that both defendants had acted negligently by shooting in his direction and thus both violated a legal duty to him. The burden of proof then shifted to the defendants to prove which one's birdshot caused the injury. [84 Cal.App.3d 875] Here, the appellant has not shown that either respondent has violated a duty to him (i. e., produced the defective product) and seeks wrongly to place on them the burden of proving his case which he himself has found too heavy to bear.

In the case of Wetzel v. Eaton Corporation (D.C.Minn.1973) 62 F.R.D. 22, the plaintiff was injured as the result of an accident caused by a faulty tractor part. The part was supplied to the tractor manufacturer by one of two component manufacturers. After the tractor was repaired, the adapter was either discarded or destroyed and so it was unavailable for inspection. Inspection was the only means by which the manufacturer of the part could be identified. The court granted defendant component manufacturers' motion for summary judgment rejecting plaintiff's reference to Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, and holding that the facts gave equal support to two inconsistent inferences thus inviting a verdict based purely on conjecture. We find that Wetzel v. Eaton Corporation, supra, correctly states the appropriate rule applicable to the case at bench. (See also Miller v. Schlitz Brewing Co., 142 Cal.App.2d 109, 297 P.2d 1024, holding non-suit and dismissal appropriate where evidence fails to identify the supplier of the defective product.) The non-suit in favor of American as alleged supplier of the blade was proper.

B

THE FACE MASK

1. The rule applicable to non-suit.

The same rule described in part A of this opinion applies here. We therefore view appellant's evidence in the light most favorable to him.

2. Evidence relative to the face mask.

The mask worn by plaintiff at the time of his accident was a three-weapon mask (a mask which may be utilized for foil, epee or sabre fencing). The interior of a three-weapon mask has a bar extending vertically and medially from the top to bottom and two bars extending horizontally, one across the top and the other across the bottom of the mask. The interior of a sabre mask has no such protection inside of it other than the wire mesh which, of course, protects the face on the three-weapon mask as well.

[84 Cal.App.3d 876] The three-weapon mask worn by plaintiff complied with the specifications for international as well as lesser competitions in 1970 and 1971; the mask not only met, but exceeded the specifications in terms of strength and durability. The vast bulk of the masks manufactured in Europe contain re-enforcing bars to give the mask added strength.

Two experts testified that based upon their independent examinations there was no defect in the wire mesh metal material forming the protective face of the mask. Both experts agreed that the wire mesh had been penetrated by an object with a sharp, cutting-type edge or tip. Daniel Dechaine, armorer for the U.S. Olympic Team of the 1976 Summer Olympic Games and inventor of machines utilized throughout the world by fencing organizations for testing purposes, also testified that it was inconceivable how a legal, standard weapon could have penetrated the mask. One of plaintiff's experts testified that the presence of re-enforcing bars in plaintiff's mask in no way contributed to the sabre's penetration of the mask. Another expert further testified that a sabre with sharp corners, given the proper force and direction, could penetrate any standard fencing mask.

3. Insufficiency of the evidence to support a verdict for design defect by manufacturer.

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without [148 Cal.Rptr. 848] inspection for defects, proves to have a defect that causes injury to a human being (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 62, 27 Cal.Rptr. 697, 377 P.2d 897). This rule applies as well to retailers (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168).

In the instant case, no evidence whatsoever was presented suggesting any defect in the manufacture of the product mask. The unrebutted testimony of both experts called by plaintiff indicated that there was no defect in the wire mesh metal that was penetrated by Croddy's sharp sabre tip. The unrebutted testimony established that the accident mask not only met, but exceeded the specifications of the recognized standards for masks in terms of strength and durability. Therefore plaintiff's case was, and is, that the mask was improperly designed. It was plaintiff's burden to prove that plaintiff was injured while using the mask in a way It was intended to be used and as a result of a defect in design. (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 64, 27 Cal.Rptr. 697, 377 P.2d 897; Erickson v. Sears, Roebuck & Co., 240 Cal.App.2d 793, 50 [84 Cal.App.3d 877] Cal.Rptr. 143.) In addition to the burden of proving a design defect, proper use and proximate cause, when a design defect is claimed Baker v. Chrysler Corp., 55 Cal.App.3d 710, 716, 127 Cal.Rptr. 745, held that plaintiff must further bear the burden of proof in demonstrating the reasonableness of alternative designs.

This holding was recently modified by Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443. But the decision of Barker, supra, does not assist appellant at bench. Barker reiterated the elements established in Greenman, supra, and reviewed in Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, necessary in a products liability case. The part of the Barker case significant here merely shifted to the defendant the burden of proof with respect to the "risk-benefit" standard applicable to alternative design. The plaintiff's initial burden of establishing a prima facie case still includes proof (1) that the product was used in an Intended or Reasonably foreseeable manner, and (2) that the product Design proximately caused the injury. (Barker, supra, 20 Cal.3d at p. 426, 143 Cal.Rptr. 225, 573 P.2d 443.)

It is in failing to prove that the mask was used as intended or in a reasonably foreseeable manner and in failing to prove that the presence of the bar proximately caused the injury that appellant failed to establish a prima facie case. The evidence is clear that the mask was not intended to be used against a sharp, pointed, or defective blade. A defectively sharp blade pierced the mask. Appellant asserts that it is a known fact that blades sometimes break during a match and therefore the use of a defective blade is a foreseeable risk. We do not agree. The second part of appellant's syllogism does not necessarily follow the first. It would enlarge the degree of reasonable foreseeability from that of a known risk, the extent of which, in terms of percentage is not disclosed by the evidence, to include the risk of the "one in a million" chance. One of appellant's own experts opined that the incident here was one in a million. We recognize that in this regard the evidence did not disclose nor are we using the term in the sense of strict mathematical probabilities. From the surrounding testimony it is clear that the term "one in a million" was not intended to express an accurate mathematical probability but was used to express in non-technical language the unreasonableness of expecting such an occurrence. It was a way of expressing the unlikelihood of this kind of accident if proper equipment is used.

Mere proof of possibility of injury is insufficient. A verdict cannot be permitted to be based upon guesswork or conjecture.

[84 Cal.App.3d 878] Plaintiff contends that the mask worn at the time of the accident was defective in that the center re-enforcing bar made it easier for a sharp edged sabre to penetrate the wire mesh of the mask. The sole testimony cited in support of this theory was from expert Herbert Fairfield, who stated [148 Cal.Rptr. 849] that in his opinion the bar acted as a die. However, he further testified that: (1) the wire mesh of the mask was penetrated by a sharp-edged or tipped sabre; (2) a sabre with sharp corners could penetrate any standard fencing mask; (3) the whole purpose of the subject mask's design was to have a round tipped and ended object slide off the mask; and (4) given a button or rounded tip sabre, the subject mask was comparable to other masks in perforation resistance. Moreover, there was no evidence that the die and punch effect would ever occur when proper blades were used.

There is no strict liability when the product is fit to be sold and reasonably safe for use but has inherent dangers that no human skill or knowledge has yet been able to eliminate (Prosser, The Fall of the Citadel (Strict Liability to the Consumer) 50 Minn.L.Rev. 791, 812 (1966)). Fencing is a form of combat, a dangerous sport. The fencing rules provide that fencers assume the risk of injury during a bout.^[2]

Considering that a sabre with sharp corners can penetrate Any standard fencing mask; that a sharp-edged sabre penetrated plaintiff's mask; and that the rules required a rounded tip on a sabre, it is clear that plaintiff's mask was subjected to a use for which it was not intended. Indeed, although masks have been penetrated by broken blades which have sharp edges unrebutted testimony indicated masks are not necessarily supposed to withstand penetration by a broken blade.

[84 Cal.App.3d 879] Even assuming here a Reasonably foreseeable use of the mask, because of the possibility of penetration by a broken blade as an example, nevertheless plaintiff has failed to present sufficient evidence of a design defect to go to the jury. No testimony was adduced by plaintiff that a fencing mask either exists or can be designed which will prevent penetration by a sharp-edged sabre. To the contrary the unrebutted testimony was that any mask can be penetrated by a sharp-edged sabre. Plaintiff failed to present any evidence that the state-of-the-art or existing technology is capable of perfecting a mask which cannot be penetrated by a sharp-edged sabre.

"Requiring an injured plaintiff who seeks damages against a manufacturer on the basis of strict liability in tort for a defective design to show that alternative designs for the product could reasonably have been developed does not enlarge plaintiff's burden of proof. An injured plaintiff has always had the burden to prove the existence of the defect. The reasonableness of alternative designs, where a design defect is claimed, is part of that burden. . . ." (Baker v. Chrysler Corp., supra, 55 Cal.App.3d 710, 716, 127 Cal.Rptr. 745, 749.)^[3]

In the case at hand, no expert or anyone else opined that the accident was [148 Cal.Rptr. 850] proximately caused by the presence of the center re-enforcing bar. The other possible cause of the accident, penetration by a sharp edged blade, is applicable to any mask. However, this latter circumstance alone does not automatically render Vince liable for design defect simply because Vince manufactures fencing masks. Simply because fencing masks cannot be made absolutely safe against all risks does not make a manufacturer liable for placing them on the market. The dual test for design defect is not intended to make "the manufacturer an insurer for all injuries which may result from the use of its product." (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 432, 143 Cal.Rptr. at p. 238, 573 P.2d at p. 456.)

It is at this critical point that it is important to distinguish between the evidence present and the evidence which is not present. It is possible that the presence of the re-enforcing bar could have caused the penetration but that is speculation. There is no evidence that the accident and injury did in fact occur specifically because of the presence of the re-enforcing bar. The mere presence of the re-enforcing bar was the claimed but unproven design defect.

[84 Cal.App.3d 880] The testimony was unrebutted that the plaintiff's mask not only met, but exceeded established specifications. There was no opinion that the accident would not have occurred but for the center re-enforcing bar. To the contrary, the same witness who characterized the safety bar as a potential hazard testified that given proper direction and force a sharp edged sabre could penetrate any standard fencing mask. Also, there was unrebutted expert testimony that the penetration would have occurred even without the re-enforcing bar.

The judgment is affirmed.

ROTH, P. J., and FLEMING, J., concurred.

Appellant's petition for a hearing by the Supreme Court was denied November 9, 1978.

[1] There was no testimony that the blade was pointed. The inference could reasonably be drawn that the sharpness was at the corners of the tip rectangle (when viewed on end) created when the blade was folded in manufacture to blunt the end.

[2] We are aware of the recent statement by our Supreme Court in Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (decided after this case was tried and appealed), that in strict products liability cases a comparative fault system will be applied and that "In such cases the separate defense of 'assumption of risk,' to the extent that it is a form of Contributory negligence, is abolished." (Emphasis added.) (Daly, supra at p. 742, 144 Cal.Rptr. at p. 390, 575 P.2d at p. 1172.) We read this opinion as inapplicable to the matter at bench. (1) The rule is expressly prospective only; (2) the risk to which we refer is not a form of contributory negligence but is conduct indicating an awareness that the available physical protection reasonably to be expected is much less than that to be expected from some other product. This view conforms with the public policy and the avowed purpose of products liability law, ". . . to insure that the costs of injuries resulting from defective products are borne by the manufacturer that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Daly v. General Motors Corp., supra, quoting Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63, 27 Cal.Rptr. (697), at 701, 377 P.2d (897) at 901.) It is difficult to perceive a person choosing to engage in the sport of sabre fencing as one powerless to protect himself.

[3] As noted previously Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, did not alter the need for demonstrating the availability of reasonable alternate design, but simply shifted to defendant the burden of proving the unreasonableness of requiring an alternative in terms of such items as cost of producing the alternative product.

[520 N.Y.S.2d 534] John L.A. Lyddane, New York City, for appellant.

Brian J. Shoot and Harvey Weitz, New York City, for Josephine Ravo, respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

In this medical malpractice action, defendant, Dr. Irwin L. Harris, appeals from an order of the Appellate Division, 121 A.D.2d 705, 503 N.Y.S.2d 890, unanimously affirming an amended judgment of Supreme Court, entered on a jury verdict, finding him jointly and severally liable with Dr. Sol Rogatnick for injuries negligently inflicted upon plaintiff, Josephine Ravo, and resulting in brain damage that has rendered her severely and permanently retarded. The issue presented is whether joint and several liability was properly imposed upon defendant under the circumstances of this case where, notwithstanding that the defendants neither acted in concert nor concurrently, a single indivisible injury--brain damage--was negligently inflicted. For the reasons that follow, we affirm.

I.

Uncontroverted expert medical evidence established that plaintiff, Josephine Ravo, who at the time of trial was 14 years of age, was severely and permanently retarded as a result of brain damage she suffered at birth. The evidence demonstrated that the child was born an unusually large baby whose mother suffered from gestational diabetes which contributed to difficulties during delivery. The evidence further established that Dr. Rogatnick, the obstetrician who had charge of the ante partum care of Josephine's mother and who delivered Josephine, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that Dr. Harris, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant's condition after birth. Based upon this evidence, the jury concluded that Dr. Rogatnick committed eight separate acts of medical malpractice, and Dr. Harris committed three separate acts of medical malpractice.

Although Dr. Rogatnick's negligence contributed to Josephine's brain damage, the medical testimony demonstrated that Dr. Harris' negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors. Indeed, plaintiff's expert, Dr. Charash, testified that while the hypoxia and [520 N.Y.S.2d 535] trauma directly attributable to Dr. Rogatick's negligence were two major villains--being the most common causes of perinatal difficulty--the hyperbilirubinemia and excessively high hematocrit level inadequately addressed by Dr. Harris could not be excluded as having a contributing effect. The expert concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Similarly, Dr. Perrotta, testifying on behalf of plaintiff, opined that she could not tell whether the excessively high hematocrit level contributed "10 percent, 20 percent, or anything like that" to the injury. Nor, as the Appellate Division found, did Dr. Harris adduce any evidence that could support a jury finding that he caused an identifiable percentage of the infant plaintiff's brain damage. Indeed, Dr. Harris' entire defense appears to have been that he was not responsible for the plaintiff's injury to any degree.

The trial court instructed the jury that if they found that both defendants were negligent, and that their separate and independent acts of negligence were direct causes of a single injury to the plaintiff, but that it was not possible to determine what proportion each contributed to the injury, they could find each responsible for the entire injury even though the act of one may not have caused the entire injury, and even though the acts of negligence were not equal in degree. The court further instructed the jury that if they found that both defendants were negligent, they would have "to compare their negligence on the basis of 100 percent". The court also instructed the jury that if they found both defendants responsible for the plaintiff's injury "then you will evaluate their respective faults in contributing to the infant's condition".

These instructions were explanatory of an interrogatory, previously accepted without objection by Dr. Harris, and submitted to the jury, that requested the standard Dole v. Dow apportionment of fault (Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288). Notwithstanding his failure to object to this interrogatory, Dr. Harris raised for the first time, after the jury was charged, an objection to the instructions, contending that he was only "liable for what injury he puts [sic ] on top of the injury that exists", and therefore responsible only as a successive and independent tort-feasor. The trial court rejected defendant's contention, and the jury returned a verdict for plaintiff in the total amount of $2,750,000 attributing 80% of the "fault" to Dr. Rogatnick and 20% of the "fault" to Dr. Harris.

In a postverdict motion, Dr. Harris sought an order directing entry of judgment limiting the plaintiff's recovery against him to $450,000 (20% of the $2,250,000 base recovery--the court having setoff $500,000 received by plaintiff in settlement of claims against other defendants) based upon his contention that his liability was not joint and several, but rather was independent and successive. This motion was denied. The Appellate Division dismissed Harris' appeal from the order denying the postverdict motion and affirmed the amended judgment entered on the jury's verdict.

II.

When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable (see, Suria v. Shiffman, 67 N.Y.2d 87, 499 N.Y.S.2d 913, 490 N.E.2d 832; Bichler v. Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182; Derby v. Prewitt, 12 N.Y.2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556; Sweet v. Perkins, 196 N.Y. 482, 485, 90 N.E. 50). This is so because such concerted wrongdoers are considered "joint tort-feasors" and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each (Bichler v. Lilly & Co., 55 N.Y.2d 571, 580-581, 450 N.Y.S.2d 776, 436 N.E.2d 182, supra; see generally, Prosser and Keeton, Torts § 46 [5th ed.] ). On the other hand, where multiple tort-feasors "neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their [520 N.Y.S.2d 536] wrongs are independent and successive" (Suria v. Shiffman, 67 N.Y.2d 87, 98, 499 N.Y.S.2d 913, 490 N.E.2d 832, supra; see, Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 N.Y.2d 57, 66, 271 N.Y.S.2d 937, 218 N.E.2d 661; Derby v. Prewitt, 12 N.Y.2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra; Matter of Parchefsky v. Kroll Bros., 267 N.Y. 410, 413, 196 N.E. 308). Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts (Milks v. McIver, 264 N.Y. 267, 270, 190 N.E. 487), includi aggravation of injuries by a successive tort-feasor (Milks v. McIver, 264 N.Y. 267, 270, 190 N.E. 487, supra; Matter of Parchefsky v. Kroll Bros., 267 N.Y. 410, 414, 190 N.E. 308, supra; Derby v. Prewitt, 12 N.Y.2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra ). The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused (see, Suria v. Shiffman, 67 N.Y.2d 87, 98, 499 N.Y.S.2d 913, 490 N.E.2d 832, supra; Derby v. Prewitt, 12 N.Y.2d 100, 106, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra; Dubicki v. Maresco, 64 A.D.2d 645, 646, 407 N.Y.S.2d 66; see also, Zillman v. Meadowbrook Hosp. Co., 45 A.D.2d 267, 358 N.Y.S.2d 466).

It is sometimes the case that tort-feasors who neither act in concert nor concurrently may nevertheless be considered jointly and severally liable. This may occur in the instance of certain injuries which, because of their nature, are incapable of any reasonable or practicable division or allocation among multiple tort-feasors (see, e.g., Hawkes v. Goll, 281 N.Y. 808, 24 N.E.2d 484, affg. 256 App.Div. 940, 9 N.Y.S.2d 924; Slater v. Mersereau, 64 N.Y. 138; Wiseman v. 374 Realty Corp., 54 A.D.2d 119, 387 N.Y.S.2d 612; see also, Prosser and Keeton, Torts § 52, at 347 [5th ed]).

We had occasion to consider such a circumstance in Slater v. Mersereau, 64 N.Y. 138, supra, where premises belonging to the plaintiff were damaged by rainwater as a result of the negligent workmanship by a general contractor and a subcontractor. We held that where two parties by their separate and independent acts of negligence, cause a single, inseparable injury, each party is responsible for the entire injury: "Although they acted independently of each other, they did act at the same time in causing the damages * * * each contributing towards it, and although the act of each, alone and of itself, might not have caused the entire injury, under the circumstances presented, there is no good reason why each should not be liable for the damages caused by the different acts of all * * * The water with which each of the parties were instrumental in injuring the plaintiffs was one mass and inseparable, and no distinction can be made between the different sources from whence it flowed, so that it can be claimed that each caused a separate and distinct injury for which each one is separately responsible * * * [t]he contractor and subcontractors were separately negligent, and although such negligence was not concurrent, yet the negligence of both these parties contributed to produce the damages caused at one and the same time" (Slater v. Mersereau, 64 N.Y. 138, 146-147, supra).

Our affirmance in Hawkes v. Goll, 281 N.Y. 808, 24 N.E.2d 484, affg. 256 App.Div. 940, 11 N.Y.S.2d 556, supra demonstrates that simultaneous conduct is not necessary to a finding of joint and several liability when there is an indivisible injury. In that case, the decedent was struck by the vehicle driven by the defendant Farrell and was thrown across the roadway, where very shortly thereafter he was again struck, this time by the vehicle driven by the defendant Goll, and dragged some 40 to 50 feet along the highway. He was taken to the hospital where he expired within the hour. The Appellate Division stated (256 App.Div. 940, 11 N.Y.S.2d 556): "As the result of his injuries the plaintiff's intestate died within an hour. There could be no evidence upon which the jury could base a finding of the nature of the injuries inflicted by the first car as distinguished from those inflicted by the second car. The case was submitted to the jury upon the theory that if both defendants were negligent they [520 N.Y.S.2d 537] were jointly and severally liable. While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury."

A similar result was reached in Wiseman v. 374 Realty Corp., 54 A.D.2d 119, 387 N.Y.S.2d 612, supra. There, the decedent had sustained injuries in a fall caused by the defective stairway and handrail in the defendant 374 Realty Corp.'s building which resulted in his hospitalization. While hospitalized, he was treated, until his death, with a drug "Decadron", allegedly known to cause stomach bleeding as a side effect, and requiring an adequate amount of antiacid therapy on a daily basis to prevent and protect against such occurrence. In reinstating Dole v. Dow cross claims by the manufacturer of the "Decadron" and the hospital against 374 Realty Corp., the court observed that notwithstanding that the acts of negligence occurred at separate times, the injuries sustained by the decedent resulted in his death, and that no distinction could be made between the injuries sustained through the negligence of the building owner and those resulting from the improper conduct of the manufacturer and the hospital (Wiseman v. 374 Realty Corp., 54 A.D.2d 119, 122, 387 N.Y.S.2d 612, supra).

Similarly, here the jury was unable to determine from the evidence adduced at trial the degree to which the defendants' separate acts of negligence contributed to the brain damage sustained by Josephine at birth. Certainly, a subsequent tort-feasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others (see, Chipman v. Palmer, 77 N.Y. 51; see generally, Prosser, Joint Torts and Several Liability, 25 Calif.L.Rev. 413). Here, however, the evidence established that plaintiff's brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.

Harris argues, however, that since the jury ascribed only 20% of the fault to him, this was in reality an apportionment of damage, demonstrating that the injury was divisible. This argument must fail. Clearly, the court's instruction, and the interrogatory submitted in amplification thereof, called upon the jury to determine the respective responsibility in negligence of the defendants so as to establish a basis for an apportionment between them, by way of contribution, for the total damages awarded to plaintiff (see, CPLR 1401; Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, supra ). In that respect, the jury's apportionment of fault is unrelated to the nature of defendants' liability (i.e., whether it was joint and several or independent and successive).

As we said in Schauer v. Joyce, 54 N.Y.2d 1, 5, 444 N.Y.S.2d 564, 429 N.E.2d 83, "CPLR 1401, which codified this court's decision in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, provides that 'two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.' The section 'applies not only to joint tortfeasors, but also to concurrent successive, independent, alternative, and even intentional tortfeasors' (Siegel, New York Practice, § 172, p. 213; see McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1401, pp 362-363)." The focus and purpose of the Dole v. Dow inquiry, therefore, is not whether, or to what degree, a defendant can be cast in damages to a plaintiff for a third party's negligence, as was the case in Zillman v. Meadowbrook Hosp. Co., 45 A.D.2d 267, 358 N.Y.S.2d 466, supra. Rather, it seeks to determine "whether each defendant owed a duty to plaintiff and whether, by breaching their respective duties, they contributed to plaintiff's ultimate injury" claimed to have been caused by each defendant (Helmrich v. Lilly [520 N.Y.S.2d 538] & Co., 89 A.D.2d 441, 444, 455 N.Y.S.2d 460; see, Schauer v. Joyce, 54 N.Y.2d 1, 5, 444 N.Y.S.2d 564, 429 N.E.2d 83, supra).

Here, the jury determined that the defendants breached duties owed to Josephine Ravo, and that these breaches contributed to her brain injury. The jury's apportionment of fault, however, does not alter the joint and several liability of defendants for the single indivisible injury. Rather, that aspect of the jury's determination of culpability merely defines the amount of contribution defendants may claim from each other, and does not impinge upon plaintiff's right to collect the entire judgment award from either defendant (CPLR 1402). As we stated in Graphic Arts Mut. Ins. Co. v. Bakers Mut. Ins. Co., 45 N.Y.2d 551, 557, 410 N.Y.S.2d 571, 382 N.E.2d 1347: "The right under the Dole-Dow doctrine to seek equitable apportionment based on relative culpability is not one intended for the benefit of the injured claimant. It is a right affecting the distributive responsibilities of tort-feasors inter sese * * * It is elementary that injured claimants may still choose which joint tort-feasors to include as defendants in an action and, regardless of the concurrent negligence of others, recover the whole of their damages from any of the particular tort-feasors sued (see Kelly v. Long Is. Light. Co., 31 N.Y.2d 25, 30, 334 N.Y.S.2d 851, 286 N.E.2d 241)." This being so, in light of the evidence establishing the indivisibility of the brain injury and the contributing negligence of Dr. Harris, and of the manner in which the case was tried and submitted to the jury, we conclude that joint and several liability was properly imposed.

Accordingly, the order of the Appellate Division should be affirmed.

WACHTLER, C.J., and SIMONS, KAYE, TITONE, HANCOCK and BELLACOSA, JJ., concur.

Order affirmed, with costs.