Multi-Vendor Acquisitions Alternative Liability Theories

By Marc S. Friedman, Esq.

From Flour Barrel to Computer Systems: The Applicability of Theories Alternative Liability to Shift the Burdens of Proof in Cases of Intermingled Causation and Damages Within a Modern Computer Scenario


The wood barrel dates back to ancient times. This container, for everything from spices to wine, is the epitome of simplicity. The computer, which is approximately fifty years old, (1) represents the closest that man has come to artificially reproducing human thought. (2) The computer thus stands as one of mankind's most advanced achievements.

What connection can there be between the wood barrel and the computer? The answer is that the injuries they both can inflict are ripe (3) for the application of the doctrine of res ipsa loquitur. (4) An 1863 British ruling, that the burden of proof shifted to the defendant where a flour barrel mysteriously fell on a passing pedestrian, (5) initiated the process through which courts today can shift the burden to defendants to prove innocence in a case involving a computer system that causes economic injury to a business.

The extraordinary penetration of the computer industry into every facet of our lives, especially the business sector, (6) has created unique legal problems that must now be addressed. For example, suppose a computer system, composed of several complex components, including hardware and software, fails. It can be very difficult, if not impossible, to ascertain which of several defendants caused the malfunction. In such a situation, a plaintiff may be deprived of a recovery if he cannot establish exactly which component malfunctioned. (7) This result is especially unfair because, for the most part, the only person or persons who would know the origin of the plaintiff's difficulties are the defendants themselves.

This article starts with a discussion of the seminal case involving res ipsa loquitur. It then delineates the evolution of the doctrine of "alternative liability," an extension of res ipsa loquitur. Next, the article discusses the characteristics of today's computer systems, with particular attention to their unprecedented niche in modern business affairs. Lastly, it argues that the theory of "alternative liability" may readily be applied to cases involving breach of warranty where several defendants, responsible for various computer components, may have independently caused indivisible damages and loss.

Res Ipsa Loquitur

In order to prove a cause of action for negligence, a plaintiff must prove four elements: (8)

The burden of proving these elements by civil law standard of preponderance of the evidence can be practically impossible in certain factual scenarios. For example, a pedestrian is walking down the street. Suddenly, and unbeknownst to him, a barrel of flour hurtles down upon him from above. He is struck, lamed, and permanently injured. The sole witness saw only the impact. In this situation, a plaintiff is hard-pressed to show that the flour company, located in the building above where the accident occurred, breached its duty and was negligent in a particular manner.

This peculiar, and true, factual situation placed the judge in a quandry in the case of Byrne v. Boadle. (9) If the judge were to rigidly require the plaintiff to prove all of the elements of negligence, the plaintiff, who could not prove the barrel fell due to the lack of reasonable care, would not be able to recover for an injury that was obviously caused by the defendant.

The court in Byrne decided that the traditional guidelines of negligence law should bend in order to promote the cause of justice. The defendant argued that it was quite conceivable that the accident, which occurred while the barrel of flour was being lowered, was caused by the purchaser of the flour or some complete stranger. (10) The court stated:

Thus, the court did not require that the plaintiff prove the identity of the person actually responsible. Nor was the plaintiff required to prove the exact manner in which the accident occurred in order to recover. (12) But, in fact, these elements were presumed based upon the facts of the case and, therefore, the burden shifted to the defendant to prove he was not liable. The mere fact that the accident occurred established a prima facie case of negligence since ordinarily the event could not have occurred unless the defendant was negligent. The judge held that the accident "spoke for itself." (13) The court's reasoning has been called res ipsa loquitur. (14)

Since the decision in Byrne, courts and commentators have recognized three conditions that must be met in order for the doctrine of res ipsa loquitur to be applied:

  1. The event must be of a kind which ordinarily does not occur without negligence;
  2. It must be caused by an instrument within the exclusive control of the defendant;
  3. It must not have resulted from plaintiff's own actions. (15)


Ybarra v. Spangard and Progeny:

Evolution of Alternative Liability


The doctrine of res ipsa loquitur has been applied to many different situations. In the case of Ybarra v. Spangard, (16) the California Supreme Court applied the doctrine of res ipsa loquitur in a new manner, thereby creating an entirely new legal theory.

In Ybarra, the plaintiff was admitted to the hospital for an appendectomy. (17) When he awakened from the operation, the plaintiff felt a sharp pain between his neck and shoulder. (18) The plaintiff believed that someone at the hospital had injured him in some manner. The plaintiff proceeded to sue the doctor, nurses, and hospital. However, the plaintiff could not identify exactly how he was injured nor who was to blame since he had been unconscious during the whole operation. (19) As a result, the plaintiff could not show the identity of the culprit nor the manner in which that person breached his duty. Therefore, the plaintiff proceeded upon the theory of res ipsa loquitur. (20) The plaintiff had another problem in that he could not even show all of the three elements of res ipsa loquitur since he had no evidence that the injury was caused by an instrumentality within the defendants' control. (21)

The court allowed the plaintiff in Ybarra to invoke the doctrine of res ipsa loquitur. The court believed that it would be manifestly unreasonable for the defendants to insist that the plaintiff identify any one of the defendants as the person who did the allegedly negligent act since the plaintiff was unconscious at the time. (22) The court did not find it fatal to the plaintiff's claim that he could not identify the instrumentality of his injury since it was sufficient that he showed that the injury resulted from an external force applied while he was unconscious in the hospital. (23) In support of his position, the court stated:

Previously, the doctrine of res ipsa loquitur has been applied to provide circumstantial evidence to prove that the act which caused plaintiff's injuries was negligent. (25) However, in Ybarra, the court extended the reach of res ipsa loquitur to provide circumstantial evidence as to the identity of the tortfeasor. (26) This new focus is no less logical in its foundation. Actually, the logic of both Byrne and Ybarra is the same. It is unfair to require a plaintiff to prove all of the elements of his claim when he is obviously injured and his injuries were obviously caused by the defendant, especially when the defendant is the only person with information as to how the injuries came about. In Byrne, there was an event which ordinarily could not have happened without the defendant's negligence. Since defendant was the only person who could have knowledge of how the event occurred, the burden of proof shifted to the defendant to prove he was not negligent. (27) In Ybarra, at least one of the defendants was negligent and caused the plaintiff's injuries. (28) Just as in Byrne, the defendants, as a group, were the only persons with knowledge of what transpired in the operating room, so the burden of proof shifted to the defendants to prove which of them were not negligent or did not cause the plaintiff's injuries. (29)

The case of Summers v. Tice (30) illustrates another extension of the doctrine of res ipsa loquitur. In Summers, three men were bird hunting. (31) The plaintiff proceeded up a hill in such a manner as to place the three men in a triangular position. (32) The two defendants had an unobstructed view of the plaintiff and they knew of his location. (33) Simultaneously, both defendants shot at a quail that was finshed from the bushes, and which flew in the plaintiff's direction. (34) One pellet of shot struck the plaintiff in the eye and another in his lip, (33) with the former obviously being the main concern of the case. The trial court found that both defendants were negligent in so shooting and that the plaintiff was not contributorily negligent. (36)

Nonetheless, the plaintiff could not prove which defendant fired the buckshot pellet that injured his eye. (37) The defendant argued that they were not joint tortfeasors, thus not jointly and severally liable, since they were not acting in concert. (38) In addition, they argued there was not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries. (39) Obviously, since only one shot hit plaintiff's eye, the damage could not have come from the gun of both defendants.

The California Supreme Court did not agree with the lower court's ruling that the defendants were jointly liable because they acted in concert. (40) The Supreme Court explained that the reason the burden of proof is shifted to the defendants is not that the defendants acted in concert but that it is unfair to deny the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did it all. (41) The defendants should be the ones to apportion it between themselves. (42) Therefore, the difficulty of proof was held to be the reason the burden is shifted whenever the harm has plural cause and not merely when defendants acted in conscious concert.

Thus, the court in Summers concluded that the defendants may be treated as liable as if they were joint tortfeasors, and as wrongdoers they should be left to work out between themselves any apportionment of damages. (43) Summers is notable because it extended the theory of "alternative liability" to a new situation. In Ybarra, each of the defendants may or may not have been negligent; the conduct of the defendants was unknown. In Summers, the conduct of each of the defendants was known to be negligent and the question was whose negligence caused the harm.

The Summers court was faced with the dilemma of either allowing an injured plaintiff to go uncompensated, thereby permitting the one defendant who was liable to escape liability, or of compensating the injured plaintiff, and holding the other innocent defendant liable along with his culpable co-defendant. The Summers court decided that the interests of justice dictate that an injured plaintiff be compensated by each of the several tortfeasors unless any defendant can prove himself innocent, thereby severing his liability from the others.

From these seminal cases, the theory of "alternative liability" has evolved. (44) The essence of "alternative liability" is that if a party can identify a group of defendants who may have caused his damages, but cannot identify which specific individual or individuals are responsible, the burden of proof may shift to each defendant to show that they were not responsible. (45) In its purest form, the theory does not apply to a single, joint tort accomplished by multiple tortfeasors, but rather applies to where independent wrongful acts are performed by two or more defendants, with only one having actually caused injury to the plaintiff. (46) However, the theory has been extended to apply to situations where several defendants' independent acts have caused an injury. (47)

Although the doctrines of res ipsa loquitur and alternative liability were born in cases involving unusual fact patterns, these theories have been applied to relatively ordinary occurrences where it has simply been difficult, if not impossible, to determine which defendant caused which injury:

The case of Hill v. Macomber (49) concerned a personal injury and death action arising from a three-car, successive collision accident. On appeal, one of the defendants accepted the jury's finding of negligence, but contended that there was insufficient proof to establish his negligence as a proximate cause of plaintiff's injuries. (50) Thus, the difficulty arose from the absence of proof as to precisely which injuries were suffered in each collision. The court applied the "single indivisible injury" rule to the problem. (51) Under this rule, "the negligent driver of the automobile in the successive impact has been held jointly and severally liable for all of plaintiff's injuries, if the injuries are 'indivisible' and the liability therefore cannot be allocated with reasonable certainty to the successive collisions." (52) The court noted that "this doctrine is more conducive to justice than the old rule which precluded all recovery simply because plaintiff was unable to prove what damage each of two or more tortfeasors did." (53)

In Jackson v. Magnavox Corp., (54) the "alternative liability" doctrine was applied in a routine personal injury case. There, plaintiffs were passengers in a car which collided with an unlighted trailer that was parked on a Jersey City street. (55) The jury's task was to determine who was responsible for the trailer being on the street, since several parties could have been to blame. (56) The defendants could offer no explanation as to how the trailer came to be left on the street, other than that it had not been stolen. The court found persuasive the arguments of two defendants that the trial judge erred in permitting the jury to find them jointly liable. (57) No proof was offered at trial to suggest that defendants were in actual joint possession and control of the vehicle at any particular time. Therefore, a new trial was granted in favor of the defendants, but only as to the issue of which of the defendants had control of the trailer when it was left on the street. (58) The court noted that the jury found both that it was negligent to leave the vehicle on the street and that at least one of the two named defendants had been in possession of the vehicle at the time of the incident. (59) Therefore, the only remaining question for determination was which defendant was responsible for leaving the trailer on the street. The defendants argued that neither of them could be held responsible unless the plaintiffs met their burden of showing by a preponderance of the evidence that a particular one of them was guilty. (60)

The court disagreed and concluded:

Thus, the case was reversed and remanded. (62)

The New Jersey Supreme Court has also used the theory of alternative liability in a commercial situation. In Nopco Chemical Division v. Blaw-Knox Co., (63) the plaintiff ordered a piece of machinery from the manufacturer, defendant Blaw-Knox Co. The contract called for delivery to plaintiff FOB, Buffalo, New York. This meant that the risk of loss shifted to plaintiff when Blaw-Knox delivered the machine to plaintiff's carrier at its Buffalo factory. (64) Plaintiff did receive the machine at his plant, but it was damaged. (65)

Two engineer-employees of plaintiff determined that the machine was injured by one or more of the defendants who apparently lifted the machine by a crane with cables without using protective spreaders. (66) Although the plaintiff's proofs showed the nature of the damage and offered a theory of its cause, plaintiff did not demonstrate which particular defendant or defendants in the transportation chain had inflicted it. (67) The issue was whether in this type of transportation-bailee situation, the burden should be shifted to each defendant to clear himself and place responsibility upon another defendant. (68)

Blaw-Knox had a contractual obligation to deliver the machine in proper condition by virtue of an express performance warranty and seemingly by virtue of the implied warranties of merchantability and fitness for a particular purpose. (69) If the damage occurred while the machine was in the possession of Central Trucking, it would be absolutely liable at common law as a common carrier. (70) Similarly, if the injury had happened while the machine was in the possession of the Harrison Warehouse Corporation, it would have been liable in contract as a warehouseman-bailee. (71) The court recognized the predicament in which this situation left the plaintiff. The plaintiff, although having a cause of action against one or more parties, is unable to prove which particular party is responsible because of the complex nature of the transaction and the fact that the determinative proof was within the knowledge of the defendants. (72)

The New Jersey Supreme Court elaborated that:

In citing Judge Carton's dissent below, (74) the New Jersey Supreme Court showed great foresight in realizing that shifting of the burden is reasonable in a routine commercial setting:

Analysis: Applicability of Alternative Liability to Computer Situations


The tremendous popularity of computers in the home and in the business (76) has produced new legal problems that must be resolved. A problem may occur any time a computer purchaser buys different components from different parties. A businessman may purchase several hardware components from different manufacturers and software from still others. If one of the parts in his computer malfunctions and he can identify the offending party, any resulting litigation is relatively simple and straightforward because a single defendant has caused a known quantity of harm to the plaintiff.

However, a more difficult scenario may occur if the owner merely knows that his system is not functioning -- he cannot readily determine which component is to blame, and for all he knows, several components may be malfunctioning. Occasionally, a technician might identify the source of the malfunction and whether it is caused by a problem with the hardware or the software. However, the greatest concern arises when one cannot readily discern which component is responsible for each particular malfunction. Even if one could determine what was faulty with the individual components, it may be impossible to differentiate between the damages which resulted from each fault, just as the plaintiffs in Hill were unable to show which of the injuries were caused by which defendant. (77) Thus, two independent parties, both negligent or in breach of warranties, may produce a single, indivisible damage. In this situation, theories of alternative liability may help a businessman/consumer in this latter situation.

At least one authority has argued that injuries caused by computers are conducive to the application of res ipsa loquitur:

The proposition of this article is a natural progression from such analysis.


Unconscious Patient Analogy


The linchpin to the use of alternative liability in a hospital/surgery case (79) is that a patient is unconscious and therefore cannot possibly explain what happened. In such cases, it is the defendant/doctor that made the patient unconscious. The import of the unconscious state of the plaintiff is not diminished by the fact that the plaintiff volunteered for the operation. A businessman likewise volunteers to buy a computer system, often with the help of a salesman's persuasion.

A businessman becomes extremely dependent upon the computer and its proper working in a manner very similar to a patient's dependence on the doctors and nurses while he is unconscious. He is largely unfamiliar with how computers work and, just like the unconscious patient, he cannot see what the computer does while it is operating. The businessman only knows what should be the end result.

Actually, a businessman and his business can quickly become "addicted" to the capabilities and speed of a computer system. (80) In fact, "[m]any computer systems have the unique quality of quickly and more completely becoming an integral part of their user's operation than almost any other technology." (81) A small business can even become dependent before the system begins to work. (82) Furthermore, "[w]hen a small business converts to a computer system, its 'very survival as a business is tied to the performance and reliability of the [system] . . . , and to the capacity and willingness of the manufacturer to stand behind it and provide the necessary support.'" (83)

With these observations in mind, it can be seen that within the commercial sphere, the businessman is vulnerable like the unconscious patient. In fact, the consequences for the businessman can be likewise devastating and can even cause the crippling or the death of a business.


Intermingled Causation and Damages


Cases like Hill v. Macomber, (84) emphasize that the key to shifting the burden is the indivisibility of the causation or damages. Unlike the crash of cars, which are of different shapes, sizes, colors, and which we can touch and see, the damage caused by simultaneously faulty computer components is far less open to study and investigation. Therefore, not only is it more difficult to determine what damage was caused by each particular component, it may in fact be an impossible task. Furthermore, there may be a synergistic effect which occurs between hardware and software that might also add to the inseparability of the damages. Even if experts were to determine specifically that the hardware caused the computer system to operate improperly in one manner and that the software caused the problem in another manner, the actual loss to the computer owner may be indivisible. For example, a business computer could malfunction so that outgoing orders contain the wrong goods and are sent to the wrong place. At the same time, the wrong goods are ordered from suppliers so that new orders cannot be filled. The result is that customers are lost. Suddenly, the businessman has lost thousands of dollars in sales, plus thousands more in additional charges, both to correct the mistake in shipments and for overtime paid to employees to get the business back on track. The businessman knows only that his computer has malfunctioned. He does not know how the computer malfunctioned, nor which component's failure is responsible for each particular loss or injury.

The businessman is very much in the situation of the plaintiffs in Ybarra, Summers, and Hill. He knows that any, or all, of the manufacturers of his hardware components and software could be responsible for his losses. However, it may be impossible to prove which one of the components malfunctioned and, if more than one malfunctioned, which failure resulted in a certain portion of the loss. Just as in the cases discussed above, the businessman should be able to use the theory of "alternative liability" to recover his damages, even though he cannot prove which defendant caused what share of the injury. Just as in the above mentioned cases, proof could be an impossible task without the defendants' assistance -- which is not likely to be forthcoming. Hence, it is more equitable and logical to shift the burden of proof to the defendants for each to prove that he is not responsible.


Knowledge Peculiarly Within Defendants' Possession


Ybarra (85) emphasized that the key to invoking the doctrine of res ipsa loquitur in its particular facts was "that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to [each defendant] but inaccessible to the injured person." (86) It is hard to imagine a case where the veil of secrecy is any greater than in the computer industry.

The great advancements in computers over the years have naturally created a veil of secrecy over every new project. Even after one purchases a computer system, he is still not privy to all information concerning that system and how it works. This observation is shared with noted authorities in the computer field who have stated:

Aside from the secrecy factor, defendants also possess superior expertise vis-a-vis the workings of their systems and computers in general that makes it easier for them to discern which component has failed and for what reason. Thus, the burden should be on the defendants because they possess the knowledge and expertise -- which the plaintiffs do not and cannot ever possess -- to know what caused what damage.




The cases that apply "alternative liability" clearly, and often explicitly, wield this doctrine as a sword of justice. (88)

The "justice" argument is equally persuasive in our scenario. From the largest to the smallest of operations, computers are quickly pervading business in America. If sellers and producers of computer components can successfully dodge liability by merely claiming "you can't prove I'm responsible" in situations where:

the causes of justice would be trampled.

In this regard, Ybarra (89) should be used as a guidepost for our efforts: "[T]he maxim that for every wrong there is a remedy would be rendered nugatory, 'by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice pay them.'" (90) Likewise, regardless of the factual differences between Summers and the above described computer sales transaction, a court should not hesitate to tailor the theory of alternative liability to this situation -- to create a computer system unique version of alternative liability -- in order to promote the cause of justice.


Applicability of Alternative Liability to a Warranty Claim


The rationales discussed above for the applications of alternative liability are equally applicable to a warranty claim in a computer situation. This is an important bridge to cross because it is mainly through warranty theories that a business can recover for its most important injury -- economic damages. As a general rule, a plaintiff who has suffered economic damages caused by a defective product may sue only for breach of warranty, not under negligence or strict liability theories. (91)

Other cases buttress the conclusion that alternative liability can be readily applied to warranty claims. For one thing, res ipsa loquitur has been used in a suit based upon warranty. In Corbin v. Camden Coca-Cola Bottling Co., (92) a customer suet the bottling company and grocer in order to recover for injury sustained when a bottle exploded. Plaintiff based his claim on theories of negligence and implied warranty. (93) Although the court noted that the phrase "res ipsa loquitur" should not be used in the charge to the jury, it held that the theory underlying the doctrine could be used for the purpose of allowing a jury to infer the existence of a defect in the bottle. (94)

This case shows that just as res ipsa loquitur can allow shifting of the burden on the issue of whether a defendant breached his duty in a negligence situation, it can also be used to shift the burden to determine whether the warranty on a product was breached.

The reason that burden shifting theories such as res ipsa loquitur and alternative liability can be used as interchangeably as herein suggested (between negligence and warranty theories) is that such "theories" are merely procedural devices. They do not create new substantive rights. Burden shifting theories are categorized as inferences or presumptions. (95) Since they are tied to the procedures by which a trial proceeds -- in no way connected to what legal theories are being used -- a plaintiff should receive the benefit of the burden shift as his claim in warranty or negligence.

Also, res ipsa loquitur is considered a form of circumstantial evidence. (96) Since circumstantial evidence can be used in any civil action regardless of the theory used, (97) it should be allowed as readily in warranty as in negligence. To prevail in a warranty claim, a plaintiff need only show that a product failed to perform as warranted by the defendant. (98) Allowing a plaintiff to infer that a duty was breached by one of several defendants is no different than allowing a plaintiff to infer that a product did not perform as warranted. The breach of warranty by a product is the same thing as the breach of a duty by a person. If one can be inferred, so can the other, regardless of what theory is being used. This is supported by the court in NOPCO, (99) which applied alternative liability to a cause of action that is essentially the same as warranty. Both a cause of action based on bailment and one based on warranty allow recovery in an absolute liability manner. (100) A carrier is liable once damage to goods is shown to have occurred while in his possession. (101) No showing of negligence is required. Likewise, in warranty, a defendant is strictly liable for injury caused by his product without any proof of negligence being necessary. (102)

Alternative liability has been applied to a case involving a breach of warranty, albeit in a case involving personal injuries where breach of warranty was combined with negligence and strict liability theories. In Anderson v. Somberg, (103) a patient sued the hospital, surgeon, manufacturer and supplier for injuries sustained when the tip of a surgical rongeur broke off in plaintiff's spinal canal. Plaintiff sued on theories of negligence, strict liability and warranty. The court wholeheartedly accepted the use of alternative liability and did so with full cognizance that breach of warranty was alleged:

In light of Anderson v. Somberg, (105) NOPCO, (106) and the previously discussed policies, it is certain that alternative liability can be applied to a suit in warranty.



The cause argued in this article is nothing more than an effort to encourage the courts to apply existing legal doctrine to new technological achievements. The theory of alternative liability has been used for over forty years to assist plaintiffs in proving the causal connection between their damages and the defendants' actions. The court merely needs to take the logical step of applying the same reasoning to the same issue -- proving causation -- in the context of breach of warranty rather than in tort. No new ground need be broken; the court merely needs to harvest previously tilled soil.




1. Most authorities consider J. Presper Eckert, Jr. and John Maunchly to be the inventors of the modern computer, more precisely called the electronic digital computer. D. BENDER, COMPUTER LAW SOFTWARE PROTECTION, ß1.02[l] (1987). Their machine became operational in 1946.

2. Nycum & Fong, Artificial Intelligence and Certain Resulting Legal Issues, in SIXTH ANN. COMPUTER L. INST. at 361 (1985). "Although as a matter of history the concept of non-humans exhibiting uniquely human attributes has existed in legend and artifact, not until the development of the digital computer in the 1950's did scientific researchers begin to think seriously about [artificial intelligence]." Id. at 363.

3. Actually, as will be seen infra, the computer is inherently far more susceptible to res ipsa loquitur principles.

4. As will be shown, res ipsa loquitur has developed several offshoots that also allow its basic burden shifting method to be used.

5. Byrne v. Boadle, 2 H. & C. l772, 159 Eng. Rep. 299 (Exch. 1863), see infra text accompanying note 9.

6. See infra note 76.

7. Although the principles discussed in this article can apply to a claim in negligence, they may also be applied to a claim in warranty. This is important because, in most states, economic damages can only be recovered in warranty. See infra notes 91-103 and accompanying text.

8. Spurlin v. General Motors Corp., 528 F.2d 612, 615 (5th Cir. 1976); Cowart v. United States, 617 F.2d 112 (5th Cir. 1980), cert. denied, 449 U.S. 903 (1980); McDaniel v. United States, 553 F. Supp. 910 (N.D. Cal. 1982); PROSSER and KEETON on the Law of Torts at 143 (W.P. Keeton 5th ed. 1984) [hereinafter Prosser]; Restatement of Torts Second ß281.

9. 2 H. & C. 77, 159 Eng. Rep. 299 (Exch. 1963).

10. Id. at 724.

11. Id. at 727-28 (emphasis supplied).

12. Id.

13. Id. at 725.

14. This is the Latin for "the thing speaks for itself." Black's Law Dictionary (5th ed.).

15. See Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431 (9th Cir. 1983); Brown v. Racquet Club of Bricktown, 95 N.J. 280 (1984); Prosser supra note 8, ß 39. at 244.

16. 25 Cal. 2d 486, 154 P.2d 687 (1944).

17. Id. at 487, 154 P.2d at 688.

18. Id. at 488, 154 P.2d at 688.

19. Id. at 492, 154 P.2d at 690.

20. Id. at 488-89, 154 P.2d at 688-89.

21. Id. at 491, 154 P.2d at 690.

22. Id. at 492, 154 P.2d at 690.

23. 492-94, 154 P.2d at 690-91. As to lack of proof concerning the defendants' exclusive control of the instrumentality, the court pointed out that in California, the test had become one of right of control rather than actual control. See Metz v. Southern Pac. Co., 51 Cal. App. 2d 260, 268 124 P.2d 670, 674 (1942). The court cited Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228 (1932), which included an unconscious body within the definition of "instrumentality."

24. 25 Cal. 2d. at 489-90, 154 P.2d at 689 (citing 9 Wigmore, Evidence ß 2509 at 382 (3d ed. 1981)).

25. Byrne v. Boadle, 2 H. & C. 772, 159 Eng. Rep. 299 (Exch 1863).

26. 25 Cal. 2d 486, 154 P.2d 687 (1944).

27. Byrne, 2 H. & C. at 724, 159 Eng. Rep. at 300.

28. Ybarra, 25 Cal. 2d at 490, 154 P.2d at 689. "Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability." (citing Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228 (1932)) (emphasis added).

29. Cf. McElhaney, The Cat and the Mouse, A.B.A.J., 110, 112 (Oct 1987). Analogizing to playground dispute over a baseball glove, response to accusation of stolen glove that "you can't prove it" is "not exactly an admission, but they have a strongly guilty ring." On a basic instinctual level it seems unfair for a defendant, who is in sole possession of the facts of how plaintiff's injuries occurred, to escape liability with the guilty-sounding defense of "you can't prove it."

30. 33 Cal. 2d 80, 199 P.2d 1 (1948).

31. Id. at 82, 199 P.2d at 2.

32. Id.

33. Id.

34. Id.

35. Id.

36. Id. at 82-83, 199 P.2d at 2.

37. Id. at 84, 199 P.2d at 2.

38. Id.

39. Id. at 83-84, 199 P.2d at 2.

40. Id. at 85-86, 199 P.2d at 3-4.

41. Id. at 86-88, 199 P.2d at 3-5.

42. Id.

43. See also Stephens v. Schadler, 182 Ky. 833, 297 S.W. 704 (1919) (applying theories of alternative liability to situation where one of two trespassing dogs causes damage to property).

44. Alternative liability's connection with res ipsa loquitur is confirmed by the New Jersey Supreme Court in Anderson v. Somberg, 67 N.J. 291, 300 (1975), wherein the Court dubbed it "conditional res ipsa loquitur."

45. See supra text accompanying notes 30-43; see also Prosser , supra note 8, at 243.

46. See Namm v. Charles E. Frost & Co., 178 N.J. Super. 19 (App. Div. 1981) (reconsidered in Shackil v. Lederle Laboratories, 219 N.J. Super. 601 (App. Div 1987)).

47. See Hill v. Macomber, 103 N.J. Super, 127 (App. Div. 1968), infra note 49 and accompanying text.

48. Prosser, supra note 8, ß 39, at 245-46.

49. 103 N.J. Super. 127. The trooper testified that the damage to the vehicles was rather extensive. The cars were "intermingled so that the wrecker had to take them apart." Id. at 132 (emphasis supplied).

50. Id. at 132.

51. Id. at 136.

52. Id.

53. Id. at 137. See also Cummings v. Kendall, 41 Cal. App. 2d 549, 559, 107 P.2d 282 (1940), where in an almost identical fact situation the court stated that "[the defendant] is a wrongdoer; let him unravel the casuisrries resulting from his wrong." Id. at 558-59, 197 P.2d at 287 (citing Navigazione Libra T.S.A. v. Newton Creek T. Co., 98 f.2d 694, 697 (2d Cir. 1938)). See also Rebyer v. Mayne, 90 Col. 586, 589-590, 10 P.2d 1109 (1932), where the court in reviewing a hunting accident akin to that in Summers queried:

Shall [defendant] be allowed to say that in the general fusilade in which he and his brother engaged he shot only geese, and that his brother alone may be held for the graver results? We are not of that opinion. It is the fact of participation, not the degree, or the extent, or the particulars, that makes every participant in such a tort liable. It is a thing integral and indivisible. Each defendant here is properly answerable for the sum or aggregate of the damage inflicted by both wrongdoers

Id. (emphasis added).

54. 116 N.J. Super. 1 (App. Div. 1971).

55. Id. at 3.

56. Id. at 6.

57. Id. at 6-7.

58. Id.

59. Id. at 7.

60. Id.

61. Id. (emphasis supplied).

62. Id. at 8.

63. 59 N.J. 274 (1971).

64. Id. at 279.

65. Id.

66. Id.

67. Id.

68. Id. at 278.

69. Id. at 281.

70. Id.

71. Id.

72. Id. at 282.

73. Id. at 282-83, examining Judge Carton's dissent at 113 N.J. Super. 19, 24 (App. Div. 1971).

74. 113 N.J. Super. at 30.

75. 59 N.J. at 283 (quoting Nopco Chem. Co. v. Blaw-Knox Co., 113 N.J. Super. at 30 (Carton, J., dissenting)).

76. It is remarkable to note that upwards of 50,000 computer systems costing over $50,000 were bought in 1979 with thousands of sales involving millions of dollars for the hardware alone, with hardware typically costing only 40% of a system. D. Brooks, Computer Law Purchasing, Leasing, and Licensing Hardware, Software, and Services 13 (1980). The Federal Government is a party to this trend, since it is typically the largest single user in the nation, accounting for 10 percent of the country's computer expenditures. D. Bender, supra note 1, at ß 1.03 (1-7). This has led to a bonanza for the advertising field, with $500 million being spent in 1985 alone by the computer industry. Friedman & Milder, Competitive Strategies: Playing Hardball in Selling Hardware, in Sixth Ann. Computer L. Inst. at 303 (1985).

77. See supra notes 49-53 and accompanying text.

78. M. Rostoker & R. Rines, Computer Jurisprudence Legal Responses to the Information Revolution 173 (1986).

79. See Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944); Anderson v. Somberg, 67 N.J. 291 (1975).

80. Note, Unconscionability and the Fundamental Breach Doctrine in Computer Contracts, 57 Notre Dame Law., 547, 553 (1982).

81. Freed, Negotiating for a Computer Without Negotiating Trouble, 2 Comp. L. Serv. (Callaghan) ß 3-2 at 1 (1979).


82. Id.

83. Note, supra note 80, at 553 (quoting Glovatorium, Inc. v. NCR Corp. (N.D. Cal. May 1, 1981), Reporter's Transcripts of Proceedings, at 24).

84. 103 N.J. Super. at 127; see supra text accompanying notes 49-61.

85. Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944); see supra text accompanying notes 16-29.

86. Ybarra, 25 Cal. 2d at 490, 154 P.2d at 689. See also Nopco, 59 N.J. at 283.

87. M. Rostoker & R. Rines, supra note 78, at 204.

88. "This doctrine is more conducive to justice than the old rule which precluded all discovery simply because plaintiff was unable to prove what damage each of two or more tortfeasors did." Hill v. Macomber, 103 N.J. Super. 127, 137 (App. Div. 1968). "Rigid procedural principles must bow to common sense and the interest of justice." Jackson v. Magnavox Corp., 116 N.J. Super. 1, 7 (App. Div. 1971).

[The defendants] 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.

Summers v. Tice, 33 Cal. 2d 80, 86, 199 P.2d 1,4 (1948).

89. 25 Cal. 2d at 486, 154 P.2d at 687; see supra text accompanying notes 16-29.

90. Ybarra, 25 Cal. 2d at 490, 154 P.2d at 689 (quoting Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228 (1932)).

91. Spring Motors Distrib., Inc. v. Ford Motor Co., 98 N.J. 555, 579-82 (1985); but cf. People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246 (1985). In People Express, the airline was suing for purely economic losses caused when Conrail allegedly negligently handled a tank car, causing a chemical fire and explosion that forced the evacuation of People's terminal which was directly adjacent to the fire. The Court held a plaintiff may recover in negligence for purely economic loss if those economic damages are the natural and probable consequence of a defendant's negligence and the plaintiff is within the risk created by such negligence. Even if the businessman with computer problems can sue in negligence, however, a suit for breach of warrantee would be preferable since the issue of whether the defendants were negligent is avoided entirely.

92. 60 N.J. 425 (1972).

93. Id. at 427.

94. Id. at 436.

95. McCormick on Evidence ß 342, at 966-67 (E. Cleary 3d ed. 1984).

96. Prosser, supra note 8, ß 39.

97. Id.

98. Id. at ß 95A.

99. Nopco Chem. Div. v. Blaw-Knox Co., 59 N.J. 274 (1971).

100. Prosser, supra note 8, ß 95A.

101. Id.

102. Id.

103. 67 N.J. 291 (1975), cert denied, 423 U.S. 929 (1975).

104. Id. at 299-300 (emphasis added).

105. 67 N.J. at 291.

106. 50 N.J. at 274.