Can all members of a group be civilly liable when some are provably innocent?
<p>Scenario: A crime involving property damage is committed. Suppose that it can be proven beyond reasonable doubt that of a group of 3 people, 2 of them were involved and one was not. However, there's no evidence as to which one exactly is innocent and which are guilty. This makes a criminal prosecution unlikely as there's no way to prove guilt beyond reasonable doubt. However, could a civil action instigated by the property owner succeed? </p>

<p>The standard in civil trials is "on the balance of probabilities" or "more likely than not." This is often expressed as "more than 50% likely", but this question is meant to provide an edge case to this standard of proof. Despite one person being provably innocent, could all 3 people be found civilly liable for 1/3 of the damages, since each individual has a 67% chance of having committed the crime?</p>

<p>Assume there is no other evidence tipping the balance of probabilities one way or the other. Answers from any common law jurisdiction are welcome, especially citing case law.</p>

<blockquote>
  <p>The standard in civil trials is "on the balance of probabilities" or
  "more likely than not." This is often expressed as "more than 50%
  likely", but this question is meant to provide an edge case to this
  standard of proof. Despite one person being provably innocent, could
  all 3 people be found civilly liable for 1/3 of the damages, since
  each individual has a 67% chance of having committed the crime?</p>
</blockquote>

<p><strong>General Rule: No</strong></p>

<p>Generally speaking, the answer is "no". A plaintiff must prove liability by a preponderance of the evidence as to each individual defendant. This flows from the basic structure of tort lawsuits (a civil claim alleging damages suffered from criminal acts is a form of tort lawsuit).</p>

<p><strong>The Narrow Market Share Liability Exception</strong></p>

<p>There is pretty much only one circumstance where something similar to your example. But, it isn't strictly analogous because it only applies when all of the defendants can be proven to have harmed some of the plaintiffs and the only question outstanding is who harmed whom.</p>

<p>Defendants may be innocent of harming some of the plaintiffs, but can't be innocent of harming any of them, to face liability in this scenario.</p>

<p>This occurs which is when a class action lawsuit is brought against all (or almost all) of the multiple separate defendants who manufactured the products of the same type, all of which were defective.</p>

<p>A manufacturer of a defective product is strictly liable for all harm caused by the defective product, but usually a plaintiff must show precisely which defendant's product caused that particular person's injury.</p>

<p>But, in the class action context, where (almost) all of the people who made the defective products are sued by (almost) all of the people who were injured by defective products of that type, courts have allowed the class to recover an amount calculated to represent the aggregate economic value of the damages suffered by all members of the class combined.</p>

<p>Then, <a href="https://en.wikipedia.org/wiki/Market_share_liability" rel="nofollow noreferrer">the aggregate damages award is allocated among the defendants in proportion to their market share of the defective product</a>. </p>

<p>Then, the amounts paid to the class by the various defendants are then allocated to members of the class based upon the estimated damages suffered by each subgroup of class members (or in separate case by case damages hearings).</p>

<p>This is an exception to the usual requirement to prove causation against each individual defendant in the case of each individual plaintiff, because the risk of injustice by the process overall to any given defendant is small, and requiring proof of causation in this situation creates a burden on plaintiffs that lacks the justification that it would have if the injured parties had sued on a piecemeal basis.</p>

<p>But, this only works when the defect in the product was shared by everyone who made that kind of product, and was not simply a "quality control" issue in the manufacturing process. </p>

<p>For example, this kind of market share causation could be appropriate against all makers of tobacco products or asbestos or lead based paint. But, it would not be appropriate in a product liability case where some cars with built with substandard parts while others were built with parts that met the specifications for the cars and those that were did not cause any harm.</p>

<blockquote>
  <p>Can all members of a group be civilly liable when some are provably
  innocent?</p>
  
  <p>Scenario: A crime involving property damage is committed. Suppose that
  it can be proven beyond reasonable doubt that of a group of 3 people,
  2 of them were involved and one was not. However, there's no evidence
  as to which one exactly is innocent and which are guilty. This makes a
  criminal prosecution unlikely as there's no way to prove guilt beyond
  reasonable doubt. However, could a civil action instigated by the
  property owner succeed?</p>
</blockquote>

<p>Yes, but at the outset I will point out that the premise you formulate is a non-sequitur. As such, an adverse inference of abetment, conspiracy, perjury, or a combination thereof renders the three people <em>liable jointly and severally</em> in civil court unless one or more of the defendants decide(s) to be forthcoming.</p>

<p>Your premise is a non-sequitur because it entails contradictory assumptions:</p>

<ul>
<li>How is it known <em>beyond a reasonable doubt</em> the number of
participants but not their identities?</li>
<li><p>What allows to rule out abetment and/or that the three individuals
took turns in the crime that involved participation by two people?</p></li>
<li><p>If none of the three people is proved to have been present at --or
witnessed-- the crime, then how is it known <em>beyond a reasonable
doubt</em> that the pair of criminals is in that set of three people? </p></li>
<li><p>In  the alternative, if one or more of them is identified and yet
none of them comes forward under oath, then an adverse inference of
fact is warranted so that an award of recovery can be entered.</p></li>
</ul>

<p>In the context of property damage, an example of legislation reflecting two or more persons as jointly and severally liable is Michigan statute <a href="http://www.legislature.mi.gov/(S(qth23g4gxhaek0omeq4tz3z4))/mileg.aspx?page=getobject&amp;objectname=mcl-600-2925a" rel="nofollow noreferrer">MCL 600.2925a</a>. Moreover, MCR 2.204(A)(1) provides that</p>

<blockquote>
  <p>a defending party, as a third-party plaintiff, may serve a summons and
  complaint on a person not a party to the action who is <strong>or may be
  liable</strong> to the third-party plaintiff <strong>for all</strong> or part <strong>of the
  plaintiff's claim</strong></p>
</blockquote>

<p>(emphasis added).</p>

<p>Thus, the part in bold in MCR 2.204 reflects the possibility of entering judgment against the three civil defendants even if it has not been proved which one of them is innocent.</p>

civil-law common-law burden-of-proof