The problems presented by “tortfeasor indeterminacy” are perhaps the greatest remaining point of contention in the otherwise generally overlooked requirement of cause-in-fact. The issue is deceptively simple; several defendants have breached a duty to the plaintiff and one of their breaches is the cause-in-fact of plaintiff's injury, but it is impossible to tell which one. As a result, the plaintiff cannot meet his evidentiary burden on the element of cause-in-fact and is unable to recover. In response to the plaintiff's dilemma, courts have developed the doctrines of “alternative liability” and “market-share liability.” Yet many courts and commentators have rejected these solutions as threats to the very structure of the tort law system. Attempts to conceptualize the doctrines have produced a multitude of conflicting explanations, many of which invoke the very rationales that have led to judicial reluctance in utilizing the doctrines. This Note will argue that previous attempts to explain alternative liability are unsatisfactory because they are inconsistent with traditional notions of cause-in-fact. In reaching its conclusion, Part II.A of this Note will discuss the general requirements of cause-in-fact, define the problem of tortfeasor indeterminacy, and explore the difficulties it creates. Part II.B will examine alternative liability, the judicial solution developed by courts in response to tortfeasor indeterminacy. Part II.C will then examine the modification of alternative liability into market-share liability. Part III.A will examine previous explanations promulgated for alternative liability and market-share liability, showing why each is unsatisfactory. Part III.B will present a new explanation for alternative liability based on application of traditional tort rules to an independent cause of action for plaintiff's loss of remedy. Parts III.C and III.D will propose potential legal bases for this cause of action. Part III.E will examine the operation of this new cause of action. Part III.F will then demonstrate how this new explanation leads to the conclusion that joint and several liability, rather than the market-share modification, is the appropriate means for apportioning liability under alternative liability.
Note, Alternative Liability and Deprivation of Remedy: Teaching Old Tort Law New Tricks, 56 Clev. St. L. Rev. 1029 (2008)