Hi Martin and all

 

First time I’ve seen that particular clip – yikes.  It seems to me that material contribution is applicable here only if one considers the four idiots to be acting independently and not as joint tortfeasors when they participate in their game of spraying each other with gasoline.  But that seems like a joint activity carried out in concert for a common purpose, making them joint tortfeasors.  If so, the but-for test should work fine.  In a negligence action brought by, for example, the owners of the gas station, the defendants would be the four idiots.  The plaintiff would allege two instances of negligence: first, the spraying of gasoline and second, the lighting of the lighter.  The first was done by the four joint tortfeasors.  The second was done independently by one of the four.  Both the spraying of the gasoline and the flame from the lighter were necessary to produce the resulting fire and explosion.  Therefore, but-for should work in both instances: But for the negligent spraying of the gasoline, would the gas station have been destroyed? Answer: no.  Therefore, the negligent acts of the four joint tortfeasors is a cause of the loss.  But for the flame from the lighter, would the gas station have been destroyed? Answer: no.  Therefore, the negligent act of the individual who lit the lighter is a cause of the loss.  Therefore, both the joint tortfeasors together and the individual tortfeasor for his individual act are jointly and severally liable to the plaintiff for the loss.  The proportioning of liability between the defendants is not a matter of concern for the plaintiff and does not affect the causation test to be applied.  If one were to conclude that the spraying of the gasoline was not a joint activity but one undertaken by each of the four individually, then okay, apply a material contribution test – but by playing a negligent game entered into by all together, they look like joint tortfeasors to me.

 

Would be interested to hear other thoughts.

 

Cheers,

Bruce

 

 

_________________

Bruce Pardy

Professor

Faculty of Law

Queen's University

Kingston ON Canada

K7L 3N6

 

pardyb@queensu.ca

http://law.queensu.ca/faculty-research/faculty-directory/pardy

Research on my SSRN page: http://ssrn.com/author=81936