Summers v. Tice
33 Cal.2d 80, 199 P.2d 1 (1948)

  • Summers, Tice, and another guy were all out quail hunting. Summers went ahead, a quail appeared, both Tice and the other guy shot at it, and some of the shot pellets hit Summers in the face. Summers sued for negligence.
    • The major damage to Summers was one single pellet that hit him in the eye. That one pellet could not have come from both guns. However, it was not possible to determine whose gun fired the offending pellet.
    • Tice and the other guy both argued that since there was no proof that the pellet came form their gun, they shouldn’t be held liable.
  • The Trial Court held both defendants equally liable for Summers’ injury. They appealed.
    • The Trial Court said, “We think that each is liable for the resulting injury, although no one could 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.”
    • Tice and the other guy both argued that it was not fair to the person who didn’t fire the shot that hit Summers to make them pay for an injury they didn’t cause.
  • The Appellate Court affirmed.
    • The Appellate Court felt that the burden of proof should rest on the defendants, not on the plaintiff.
      • If one defendant could show that the other defendant fired the fatal shot, then they could escape liability. If they can’t prove the other guy did it, then both will be held liable.
    • The Court noted that both defendants were negligent, it was just that one guy got lucky and his negligent shot missed. So it wasn’t unreasonable to hold both defendants liable.
      • Summers was found to not be contributorily negligent, so he wasn’t at fault. But someone had to pay Summers’ medical bills. If Tice and the other guy got off, then Summers would have to pay, and that’s not right.
  • In Doe v. Baxter Healthcare Corp. (380 F.3d 399 (2004)), this doctrine was extended. It was held that a defendant can be held liable even if it is highly unlikely that their actions caused the damage, as long as it cannot be shown that the actions could not have caused the damages.