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Scenario: A crime involving property damage is committed. Suppose that it can be proven beyond reasonable doubt that of a group of 3 people, 2 of them were involved and one was not. However, there's no evidence as to which one exactly is innocent and which are guilty. This makes a criminal prosecution unlikely as there's no way to prove guilt beyond reasonable doubt. However, could a civil action instigated by the property owner succeed?

The standard in civil trials is "on the balance of probabilities" or "more likely than not." This is often expressed as "more than 50% likely", but this question is meant to provide an edge case to this standard of proof. Despite one person being provably innocent, could all 3 people be found civilly liable for 1/3 of the damages, since each individual has a 67% chance of having committed the crime?

Assume there is no other evidence tipping the balance of probabilities one way or the other. Answers from any common law jurisdiction are welcome, especially citing case law.

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The standard in civil trials is "on the balance of probabilities" or "more likely than not." This is often expressed as "more than 50% likely", but this question is meant to provide an edge case to this standard of proof. Despite one person being provably innocent, could all 3 people be found civilly liable for 1/3 of the damages, since each individual has a 67% chance of having committed the crime?

General Rule: No

Generally speaking, the answer is "no". A plaintiff must prove liability by a preponderance of the evidence as to each individual defendant. This flows from the basic structure of tort lawsuits (a civil claim alleging damages suffered from criminal acts is a form of tort lawsuit).

The Narrow Market Share Liability Exception

There is pretty much only one circumstance where something similar to your example. But, it isn't strictly analogous because it only applies when all of the defendants can be proven to have harmed some of the plaintiffs and the only question outstanding is who harmed whom.

Defendants may be innocent of harming some of the plaintiffs, but can't be innocent of harming any of them, to face liability in this scenario.

This occurs which is when a class action lawsuit is brought against all (or almost all) of the multiple separate defendants who manufactured the products of the same type, all of which were defective.

A manufacturer of a defective product is strictly liable for all harm caused by the defective product, but usually a plaintiff must show precisely which defendant's product caused that particular person's injury.

But, in the class action context, where (almost) all of the people who made the defective products are sued by (almost) all of the people who were injured by defective products of that type, courts have allowed the class to recover an amount calculated to represent the aggregate economic value of the damages suffered by all members of the class combined.

Then, the aggregate damages award is allocated among the defendants in proportion to their market share of the defective product.

Then, the amounts paid to the class by the various defendants are then allocated to members of the class based upon the estimated damages suffered by each subgroup of class members (or in separate case by case damages hearings).

This is an exception to the usual requirement to prove causation against each individual defendant in the case of each individual plaintiff, because the risk of injustice by the process overall to any given defendant is small, and requiring proof of causation in this situation creates a burden on plaintiffs that lacks the justification that it would have if the injured parties had sued on a piecemeal basis.

But, this only works when the defect in the product was shared by everyone who made that kind of product, and was not simply a "quality control" issue in the manufacturing process.

For example, this kind of market share causation could be appropriate against all makers of tobacco products or asbestos or lead based paint. But, it would not be appropriate in a product liability case where some cars with built with substandard parts while others were built with parts that met the specifications for the cars and those that were did not cause any harm.

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  • Could you expand on how it "flows from the basic structure of tort lawsuits?" I'm not too familiar with them. Thanks.
    – DPenner1
    Sep 14, 2018 at 15:07
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    Basically, in a civil lawsuit, you file a complaint against a specified set of defendants and identify you theory of liability against each defendant one by one. Each theory of liability against each defendant is evaluated separately by a judge or jury in a verdict. To prevail you need to prove that it is more likely than not that a particular defendant is liable on a particular theory of liability.
    – ohwilleke
    Sep 15, 2018 at 0:37
  • It is also worth noting that sometimes it is easier to prove a criminal charge than a civil one. Criminal charges often don't require proof of harm caused to a particular person, while civil liability almost always has to show linkage to a particular defendant.
    – ohwilleke
    Sep 15, 2018 at 0:39
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Can all members of a group be civilly liable when some are provably innocent?

Scenario: A crime involving property damage is committed. Suppose that it can be proven beyond reasonable doubt that of a group of 3 people, 2 of them were involved and one was not. However, there's no evidence as to which one exactly is innocent and which are guilty. This makes a criminal prosecution unlikely as there's no way to prove guilt beyond reasonable doubt. However, could a civil action instigated by the property owner succeed?

Yes, but at the outset I will point out that the premise you formulate is a non-sequitur. As such, an adverse inference of abetment, conspiracy, perjury, or a combination thereof renders the three people liable jointly and severally in civil court unless one or more of the defendants decide(s) to be forthcoming.

Your premise is a non-sequitur because it entails contradictory assumptions:

  • How is it known beyond a reasonable doubt the number of participants but not their identities?

  • What allows to rule out abetment and/or that the three individuals took turns in the crime that involved participation by two people?

  • If none of the three people is proved to have been present at --or witnessed-- the crime, then how is it known beyond a reasonable doubt that the pair of criminals is in that set of three people?

  • In the alternative, if one or more of them is identified and yet none of them comes forward under oath, then an adverse inference of fact is warranted so that an award of recovery can be entered.

In the context of property damage, an example of legislation reflecting two or more persons as jointly and severally liable is Michigan statute MCL 600.2925a. Moreover, MCR 2.204(A)(1) provides that

a defending party, as a third-party plaintiff, may serve a summons and complaint on a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim

(emphasis added).

Thus, the part in bold in MCR 2.204 reflects the possibility of entering judgment against the three civil defendants even if it has not been proved which one of them is innocent.

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  • I'll dispute that the assumptions are necessarily contradictory, though admit that the facts would have to be quite contrived to reach the scenario I describe. Example: crime is committed at night inside an otherwise empty building where internal video shows 2 people committing the crime (though their faces are obscured, assume all 3 people are of similar build). However, external video surveillance shows that exactly 3 people entered the empty building in the time period, and this video was able to capture their faces. Each suspect of course blames the other two.
    – DPenner1
    Sep 14, 2018 at 15:00
  • I do however appreciate the statute citation of how this scenario might play out in court.
    – DPenner1
    Sep 14, 2018 at 15:01
  • @DPenner1 The coincidence in the timing of the three people entering the building may support an adverse inference of abetment even if only two of them committed the crime (whereas a non-coincidence would facilitate identifying the innocent one). For instance, one of them could have stayed just outside the scene of the crime so as to watch out for (and alert the other two if) police or anyone else (is) approaching.
    – Iñaki Viggers
    Sep 14, 2018 at 15:11
  • Sure, there could be endless facts that contribute to adverse inference, and I understand that real world cases can be messy. However, I'm interested in addressing the legal hypothetical where this isn't the case.
    – DPenner1
    Sep 14, 2018 at 15:17
  • @DPenner1 I understand. My point is that the body of law is not (and cannot be) fully continuous --so to speak-- in prescribing the outcome for every imaginable scenario. Hence the importance of ascertaining first whether the scenario at issue is reducible or even a non-sequitur. For any remaining gaps, one can only reach a conclusion by considering what can be implied from related/close statutes and court rules (aka rules of civil procedure) ... and that is how new case law is developed.
    – Iñaki Viggers
    Sep 14, 2018 at 15:33

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