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Summers v. Tice

Citation. 33 Cal.2d 80, 199 P.2d 1 (1948)
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Brief Fact Summary.

Charles A. Summers (Plaintiff) was struck in the eye and lip by shots from one or both of Defendants’ guns. There was no way to determine whose bullet struck the Plaintiff. The trial court held that both Defendants were liable to Plaintiff.

Synopsis of Rule of Law.

If two defendants cause damage that either one would be liable for, then both defendants will be held liable if it cannot be easily determined which defendant was the cause in fact of the injury.


Plaintiff, Ernest Simonson, and Harold W. Tice were hunting in the same area. At the same time, both defendants negligently fired their guns at a quail, and in the direction of Plaintiff. Plaintiff was struck in the eye and lip by shots from one or both of Defendants’ guns. There was no way to determine whether the shots were from the gun of one defendant or the other or one shot from each of them. The shot that entered Plaintiff’s eye did the most damage, and that shot could not have come from both of the Defendants. However, the trial court held that both Defendants were liable. Defendants appealed on the grounds that they were not joint tortfeasors, they were not acting in concert and there was insufficient evidence to show which of them was negligent.


Are both Defendants liable for shooting Plaintiff when it cannot be determined which gun or guns fired the shots that injured Plaintiff?


Yes. Judgment affirmed.
* The court stated that both Defendants were acting in concert and they both were liable. Each defendant is liable for the resulting injury to Plaintiff, although no one can say who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.
* The innocent Plaintiff should not have to bear the burden of proof of which shot from which gun or guns fired by the Defendants did the damage. Such a burden is properly shifted to the Defendants. Each Defendant can absolve himself, if he can. Defendants are in a far better position to offer evidence to determine which one caused the injury.
* In this case, Defendants may be treated as liable on the same basis as joint tortfeasors. The wrongdoers should be left to work out between themselves any apportionment of damages.


In this case, the court imposes liability on Defendants without determining which Defendant is the cause in fact of Plaintiff’s injury. The test in this case is referred to as the alternative causation test.

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