In this negligence case, the California Court of Appeal, within the context of a summary judgment motion, addressed the application of alternative liability principles established in Summers v. Tice (1984) 33 Cal.2d 80. The plaintiff, Anthony Mitchell, was driving his Ferrari through Dana Point when the underside of the vehicle struck and dragged large rocks that had rolled onto the roadway from a nearby hillside. The incident caused extensive damage to the car and led to unspecified personal injuries.
Because the precise origin of the rocks could not be determined, Mitchell and his fellow plaintiffs sued multiple hillside property owners for negligence and premises liability, including Gail B. Hutchison, trustee of the Hutchison Family Trust. Hutchinson moved for summary judgment on the ground that plaintiffs could not establish causation as required by law. The trial court agreed and entered judgment in her favor, prompting the plaintiffs to appeal.
The appellate court affirmed. Under Code of Civil Procedure section 437(c), subdivision (p)(2), Hutchison successfully demonstrated that plaintiffs could not prove the element of causation for either of their claims. This shifted the burden to plaintiffs to raise a triable issue of material fact, either by showing the rocks originated from Hutchison's property or by establishing that the defendants collectively failed to maintain their properties in a manner that would involve the Summers doctrine and shift the burden of causation to them. Plaintiffs failed to do either.
According to the first amended complaint, filed in January 2021, the plaintiffs alleged that rocks rolled onto the roadway from one of several properties due to the landowners' failure to implement protective measures such as barriers or fencing. They claimed the defendants had notice of the boulder hazards and failed to prevent foreseeable harm to passing motorists.
Following discovery, Hutchison's expert opined that the rocks' point of origin could not be known with certainty and that they could have come from any number of properties. In opposition, plaintiffs offered their own expert, who asserted that the rocks likely originated from one of three properties and that their descent was caused by rain and exacerbated by the absence of physical barriers or landslide controls. He further stated that the owners knew the hillside was prone to rock movement due to various environmental factors.
The trial court considered summary judgment motions from all defendants concurrently and granted judgment in favor of each. In Hutchinson's case, the court found her evidence sufficient to establish that the property was merely one potential source of the rocks. Plaintiffs' rebuttal failed to establish a genuine dispute as to whether Hutchison or the other property owners had maintained their land negligently in a way that could justify shifting the burden of proof. The judgment in favor of Hutchison was affirmed on appeal.
Discussion
The appellate court upheld the trial court's decision granting summary judgment in favor of Hutchison, concluding the plaintiffs failed to meet their burden of proof on the issue of causation. The plaintiffs asserted claims for negligence and premises liability based on the theory that Hutchison and other hillside property owners were joint tortfeasors.
To prevail on a negligence or premises liability claim, a plaintiff must prove the defendant owed a duty of care, breached that duty, and that the breach proximately caused the injury. Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 767. While plaintiffs general bear the burden of establishing causation, California law provides for an exception in limited circumstances. Under Summers v. Tice (1948) 33 Cal.2d 80, if multiple defendants acted tortiously and it is impossible to identify the specific wrongdoer, the burden may shift to each defendant to prove they were not the cause of the harm. However, this burden-shifting mechanism applies only where the plaintiff first establishes that all defendants were in fact negligent. "The alternative liability theory acts only to shift the burden of proof from plaintiff to proven wrongdoers- plaintiff must still prove that all defendants acted tortiously." Dumin v. Owens-Corning Fiberglas Corp., (1994) 28 Cal.App.4th 650, 657-58.
In this case, Hutchison, as the party moving for summary judgment, had to first demonstrate that plaintiffs could not establish causation. She met this initial burden under Code of Civil Procedure section 437c, subdivision (p)(2) by presenting evidence, including deposition testimony, discovery responses, and an expert declaration, that the plaintiffs lacked any evidence to establish the rocks came from her property. Her expert further explained that the origin of the rocks could not be determined with certainty and that they could have come from any number of properties on the slope.
Once Hutchison met her burden, the obligation shifted to plaintiffs to raise a triable issue of material fact. The court determined they failed to do so. Their expert offered only a general opinion that the rocks, "likely" came from one of three properties, including Hutchison's. He also claimed that the rocks entered the roadway because there were no barriers or landslide mitigation measures. However, he provided no concrete evidence connecting Hutchison's property specifically to the incident.
Plaintiffs also attempted to introduce a geologic report suggesting Hutchison's property might be susceptible to landslides, but they offered no proof that Hutchison received the report or that it demonstrated a foreseeable risk of rockslides. The report itself indicated a low risk of landslide activity and noted no such events had occurred since 1996. Furthermore, the expert did not reference the report in his declaration, and the court concluded his opinion that Hutchison had notice of slope instability lacked any factual basis or admissible support.
The court also found that plaintiffs' reference to a torn tarp seen on the hillside was speculative and unsupported. "In a summary judgment proceeding, an expert's opinion may be rejected if it is conclusory, speculative, or without foundation." Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769. There was no evidence tying the tarp to Hutchison's property or indicating that it had any bearing on the cause of the rockfall. Plaintiffs' argument that the tarp suggested a failed attempt at slope protection was deemed speculative and insufficient to raise a triable issue.
Since plaintiffs did not offer competent, admissible evidence to show that Hutchison's conduct caused their injuries or that she had notice of a dangerous condition, the burden never shifted back to Hutchison to disprove causation. The court therefore concluded the trial court's grant of summary judgment was proper.
Key Takeaways
- In a negligence and premises liability lawsuit involving multiple hillside property owners, the plaintiffs failed to prove that rocks causing a vehicle accident originated form a specific defendant's land.
- The Summers v. Tice alternative liability doctrine did not apply because plaintiffs did not establish that the defendant acted negligently.
- The defendant, Gail Hutchison, met her burden on summary judgment by showing plaintiffs lacked admissible evidence of causation.
- The plaintiff's' expert testimony was found speculative and unsupported by the factual record, failing to raise a triable issue.
- Burden-shifting under Summers is available only after plaintiff establishes that each defendant acted tortiously.
Conclusion
The appellate court's decision reinforces the principle that plaintiffs must first produce admissible evidence of each defendant's negligence before involving burden-shifting under the alternative liability doctrine. In this case, mere speculation about the origin of the rocks and unsupported expert opinions were insufficient to avoid summary judgment. As a result, the trial court properly granted judgment in favor of Hutchison, highlighting the evidentiary rigor required when multiple defendants are involved and causation is uncertain.
