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Summers v. Tice

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

Both defendants shot at plaintiff’s direction at the same time. Plaintiff was seriously injured but there was no way to determine which one of the defendants fired the shot that injured plaintiff.

Synopsis of Rule of Law.

  1. Two tortfeasors can both be liable even the injury could only be caused by one of them.
  2. If there is no way to determine which defendant’s negligence caused the injury, the burden of proof shifts to the defendants.
  3. When defendants cannot not work out apportionment of liabilities among themselves, they will all be held liable.


Summers went quail hunting with Tice and Simonson. Before the hunt began, all three reviewed safety rules and hunting procedures, indicating that they were to exercise care when shooting and to keep in line. Despite this, plaintiff somehow got ahead of the other two, putting the group in a triangle formation. Then a quail appeared and flew in front of defendant Simonson, but behind plaintiff. As a result, both defendants fired in the direction of the quail and plaintiff. One shot struck plaintiff in the eye and another entered his upper lip. But there was no way to determine whose shot injured plaintiff as both defendants shot at the same time at the same direction. Plaintiff sued both defendants in a negligence action to recover damages.


Whether trial court’s judgment against both defendants may stand, which means whether they can both be liable even the injury could only be caused by one of them?


Yes. The Supreme Court of California affirmed trial court judgment that both defendants are liable for plaintiff’s injury.


This Court agreed with trial court’s finding on the issue that defendants were both liable and that the negligence of both was the actual cause of the injury.

Defendants’ main argument was that only one person caused the injury, it is unfair to punish both of them just because there was no way to figure out which defendant really caused the injury. The Court did not give credit to defendants’ argument.

The Court explained that plaintiff should not be deprived of his recovery just because he cannot know which defendant actually shot him. The Court consulted Rest., Torts, § 432: “If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be held by the jury to be a substantial factor in bringing it about.” So if more than one person by their acts possibly results in the sole cause of the harm, and the plaintiff has introduced evidence that one of them is culpable, then the defendants have the burden of proving that the other person was the sole cause of the harm.

The Court emphasized that it would be practically unfair to deny plaintiff’s recovery just because he could not prove how much damage each defendant did. The wrongdoers should have the burden to work out apportionment of liability among themselves. Since in this case they could not, they are both liable for causing plaintiff’s injuries.

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