dissenting. While the doctrine of alternative liability may possess merit in a given case, it does not apply in the case sub judice as appellant failed to show that reasonable minds could differ as to the liability of the appellees based upon any negligence of either. Due to the majority’s misinterpretation of Section 433(B) of 2 Restatement of the Law 2d, Torts (1965) 441, and cases decided thereunder, I must dissent.
The alternative liability doctrine was first enunciated by the California Supreme Court in Summers v. Tice (1948), 33 Cal. 2d 80, 199 P. 2d 1. In such case, the plaintiff brought an action against two hunting companions as a result of being struck in the right eye and face by birdshot discharged from a shotgun. It was alleged that the defendants fired at a quail and struck plaintiff instead. The plaintiff, however, was unable to conclusively establish which companion shot him, as both fired their guns from the same proximity at approximately the same time.
The California trial judge ruled that each defendant was negligent as their conduct was not that of a reasonable person. Based on this ruling, the California Supreme Court held that the burden of proving causation shifted to the negligent defendants because the plaintiff was put in the unfair position of attempting to establish which defendant caused the harm. The court further noted that to hold otherwise would be to exonerate the defendants from liability even though it was established that each was negligent and an injury resulted from such negligence.
The seminal case concerning alternative liability in the area of products liability is that of Hall v. E. I. Du Pont De Nemours & Co., Inc. (E.D. N.Y. 1972), 345 F. Supp. 353.1 There, the action arose out of eighteen separate accidents in which children were injured by blasting caps. The plaintiffs sought damages from manufacturers of the caps and their trade association. However, in most instances, the manufacturer of the specific blasting cap was unknown.
The New York federal court held that a plaintiff must satisfy three essential elements before shifting the burden of causation under the alternative liability theory. First, the plaintiff must establish that the injury-causing product was of the type made by the defendants. Second, the plaintiff must demonstrate that each defendant breached a duty of care owed to him. And, third, the plaintiff must show that all of the breaches committed by the defendants were substantially concurrent in time and of a similar nature.
The drafters of the Restatement of the Law of Torts 2d also indicated *401that a plaintiff must first establish negligence before gaining the benefits of Section 433(B). Comment g to such section provides at 446:
“[T]he rule * * * applies only where it is proved that each of two or more actors has acted tortiously, and that the harm has resulted from the conduct of some one of them. On these issues the plaintiff has still the burden of proof. The rule stated has no application to cases of alternative liability, where there is no proof that the conduct of more than one actor has been tortious at all. In such a case the plaintiff has the burden of proof both as to the tortious conduct and as to the causal relation.” See, also, Prosser & Keeton, Law of Torts (5 Ed. 1984) 271, Section 41.
In the present case, it is undisputed that both appellees supplied ethyl acetate to appellant’s employer. Appellees gave information to the employer concerning the acetate including its highly flammable propensity and the fact that it should not be used around electric motors. Warnings were also placed on the huge drums in which the material was transported. However, the warnings were effectively ignored, as the ethyl acetate was removed from the drums and placed in a safety can, only to be transferred again into unmarked squeeze bottles which were subsequently used by appellant to clean the printing press. This practice eliminated any opportunity for appellant to read and follow the warning labels. Therefore, the cause of the accident was a combination of appellant’s misuse of the acetate and the employer’s failure to inform its employees of the dangerous propensities of the liquid.
Appellant’s complaint sought damages for an alleged failure to warn on the part of appellees. Pursuant to Section 402(A) of the Restatement of the Law 2d, Torts, where a manufacturer provides adequate warning, it is assumed that such warning will be read and heeded, and the product cannot be rendered unreasonably dangerous under the principles of strict products liability. 2 Restatement of the Law 2d, Torts (1965) 353, Section 402(A), Comment j. The information supplied by appellees to appellant’s employer satisfied appellees’ obligations to adequately warn as a matter of law. Weekes v. Michigan Chrome & Chemical Co. (C.A. 6, 1965), 352 F. 2d 603; Bertone v. Turco Products, Inc. (C.A. 3, 1958), 252 F. 2d 726. Therefore, summary judgment was proper in this case as appellant could not establish that appellees were negligent which, in turn, would give appellant the benefit of alternative liability.
Accordingly, I would affirm the judgment of the court of appeals.
W. Brown, J., concurs in the foregoing dissenting opinion.This case was also concerned with the enterprise liability theory which is not at issue here.