Plaintiff and defendants Tice and Simonson were hunting quail together on open range. Plaintiff had warned defendants to use care and to keep in line, but plaintiff moved uphill so that the three formed a triangle; defendants knew plaintiff’s location and had an unobstructed view of him. A quail flew between plaintiff and defendants, and both defendants fired almost simultaneously in plaintiff’s direction from about 75 yards away. Plaintiff was struck in the eye and lip by birdshot, but it could not be determined which defendant’s shot caused the injuries.
When two negligent defendants independently fire in the plaintiff’s direction and only one actually causes the injury, may both be held liable unless a defendant proves he did not cause the harm?
Where two defendants are both negligent toward the plaintiff, and the injury was caused by one of them but the plaintiff cannot reasonably identify which one, the burden shifts to each defendant to prove he did not cause the injury. Otherwise, both may be held jointly liable for the entire harm.
Yes. The judgment against both defendants could stand because both were negligent, one of them caused the injury, and the burden was properly placed on defendants to absolve themselves.
The court found sufficient evidence that both defendants negligently fired toward plaintiff while knowing his location, and that plaintiff was neither contributorily negligent nor assumed the risk merely by joining the hunt. Requiring plaintiff to prove which gun fired the injuring shot would unfairly deny recovery where defendants’ concurrent negligence created the evidentiary uncertainty. Because the defendants were in a better position to explain who caused the harm, the burden shifted to them to prove noncausation. The court analogized to Ybarra v. Spangard and relied on policy that negligent defendants should bear the loss rather than an innocent plaintiff left remediless.
Summers v. Tice is the classic California source of the alternative liability doctrine: when multiple negligent defendants are before the court and one caused the injury, uncertainty as to which one shifts the burden of proof to the defendants. The case is foundational in torts for causation and burden-shifting, and it complements Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944), which similarly relaxed ordinary proof barriers where defendants had superior access to the facts. It is also frequently contrasted with Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924 (1980), which expanded burden-shifting concepts into market-share liability.
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