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Summers v. Tice

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

The plaintiff and defendants were on a hunting trip together. The defendants shot at a quail at the same time with the plaintiff standing 75 yards away, and the plaintiff was struck in the eye and the lip by pellets from one of the shots. It is unclear who shot the round that injured the plaintiff.

Synopsis of Rule of Law.

Theories of alternative liability and joint and several liability allow plaintiffs to recover for injuries in situations where it is unclear which of many wrongdoers caused the injury in question.


On November 20, 1945, the plaintiff went quail hunting with both defendants. Each defendant was armed with a 12 gauge shotgun loaded with shells of the same size. Prior to going hunting, the plaintiff discussed proper care and procedure for the trip with the defendants. A quail flew to a 10-foot elevation, and both defendants shot at it. The plaintiff, 75 yards away from the defendants, was struck in the right eye and the upper lip. There is no dispute over the fact that both defendants were negligent and that the plaintiff was not contributorily negligent.


Can the judgement against both defendants stand?


Yes. Each defendant is liable for the whole damage, regardless of whether they are deemed to be acting in concert.


The defendants argued that they were not joint tortfeasors acting in concert, and thus not jointly and severally liable. There is not sufficient evidence to show which one of them caused the injury to the plaintiff. The court determines that the negligence of both defendants proximately caused the plaintiff’s injury, even if it is unclear who shot the round that directly injured the plaintiff, and so the pair are both liable. Each defendant has incentive to deny his own responsibility, and it would be unfair to allow them both to escape liability at the expense of the innocent plaintiff.

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