(dissenting)—I dissent. The reason the State filed the petition for adjudication was to obtain child support for the minor child rather than having the mother receive funds from the Aid to Families with Dependent Children program. While this is not a case involving the law of torts, it is analogous to the classic hornbook example, see W. Prosser, Torts § 41, at 243 (4th ed. 1971), where two defendants negligently shoot across a public highway at the same time and the plaintiff is struck by one shot which may have been fired from either gun. Instead of dismissing the action against both for lack of a preponderance of proof against either, courts have found a concert of action and thus permitted recovery against both, or placed the burden of proof as to causation on the two defendants. See also Restatement (Second) of Torts § 433B(3) (1965); 1 S. Speiser, C. Krause & A. Gans, American Law of Torts § 3.7, at 393-98 (1983); Azure v. Billings, 182 Mont. 234, 596 P.2d 460, 469-71 (1979) (quoting Wigmore, Joint Tortfeasors and Severance of Damages, 17 Ill. L. Rev. 458 (1923)).
Here, both men admit they had intercourse with the mother during the period of conception. Blood tests show both have a very high probability of being the father. Inno*193cent taxpayers should not be responsible for the child's support because of the difficulty in proving which of the two men is in fact the father. Since the State has made a prima facie case, the burden of proof should be shifted to the two men to establish which is the father, W. Prosser, § 52, at 319, and if neither can produce evidence he is not the father, then the court should impose joint and several liability on both limited to child support until the child reaches the age of majority or is emancipated. See Rauscher v. Halstead, 16 Wn. App. 599, 601-02, 557 P.2d 1324 (1976); W. Prosser, § 41, at 243. Both Mr. Hendrickson and Mr. Vooge danced, therefore, both should pay the fiddler unless they prove which one is the father. The taxpayers of this state were not involved in the dance and should not be required to pay. I would reverse and remand for further proceedings consistent with the above.
Review denied by Supreme Court March 3,1987.