Summers v. Tice

Supreme Court of California · 1948 · Torts

Tortscausationalternative liabilityburden shiftingcausationalternative liabilitymultiple defendantsburden shifting

Facts

Plaintiff and the two defendants were hunting quail on open range, and each defendant carried a 12-gauge shotgun loaded with the same size shot. Plaintiff had told defendants to use care and keep in line, but during the hunt plaintiff moved uphill so that the three hunters formed a triangle, and defendants knew plaintiff's location with an unobstructed view. When a quail flushed and flew between plaintiff and defendants, both defendants shot at it in plaintiff's direction from about 75 yards away. A birdshot pellet struck plaintiff's eye and another struck his upper lip, but it could not be determined from which defendant's gun the injuring shot or shots came.

Issue

When two defendants are both negligent in shooting toward the plaintiff, but only one of them may have fired the shot that caused the principal injury and the plaintiff cannot identify which one did so, may both defendants be held liable? Relatedly, does the burden shift to each defendant to absolve himself from causation under those circumstances?

Rule

Where two defendants are both negligent toward the plaintiff, and their conduct creates a situation in which the injury was caused by one of them but the plaintiff cannot identify which one, the burden shifts to each defendant to prove that he did not cause the harm. In such a case, each defendant may be held liable for the whole damage unless he absolves himself, because the wrongdoers, not the innocent plaintiff, should bear the uncertainty they created.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a dove hunt outside Tucson, Noah Benton walked ahead of his companions, Eli Moran and Victor Shaw, after reminding them to watch their line of fire. Both men saw Noah clearly on open ground. A bird flew up between Noah and the two men, and each negligently fired toward the bird in Noah’s direction; a pellet struck Noah’s shoulder, but the pellet cannot be traced to either gun.

If Noah sues both Eli and Victor for negligence, which is the best result?

Explanation. Where two defendants are both negligent toward the plaintiff, and the injury was caused by one of them but the plaintiff cannot identify which one, the burden shifts to each defendant to absolve himself from causation. The majority reasoned that both wrongdoers created the uncertainty, and the innocent plaintiff should not bear that evidentiary burden. Conscious concert is not required.