Summers v. Tice
Encyclopedia
Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), is a seminal California Supreme Court tort
law
decision relating to the issue of liability where a plaintiff
cannot identify with specificity which among multiple defendant
s caused his harm. The case has had its greatest influence in the area of product liability
in American
jurisprudence.
hunt
on November 20, 1945. Each of the defendants was armed with a 12 gauge
shotgun
loaded with shells
containing 7 size shot. Prior to going hunting
plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." Plaintiff advanced ahead of the defendants up a hill
, creating a triangle
among the three men, with plaintiff front and center. The view of both defendants with respect to Summers was unobstructed, and both defendants knew his location, 75 yards from each of them. A quail flew to a 10 foot elevation above the plaintiff's head (approximately four feet higher than the plaintiff's head), both defendants shot at the quail, and bird shot struck plaintiff in his right eye
and another in his upper lip
.
Plaintiff sued both defendants for personal injuries. At trial it was established that each of two pellets had caused the injuries to plaintiff's lip and eye, respectively, and both might have been discharged from a single weapon (defendant) or each defendant may have contributed one of the injuring pellets. The trial court found that the defendants were negligent (i.e., that when they discharged their weapons they did not do so with ordinary prudence), and that the plaintiff was not contributorily negligent. The defendants appealed.
The court affirmed the lower court ruling that that each defendant’s behavior fell below the standard of care (i.e., they were both negligent) and that the plaintiff's conduct did not contribute to his injury. Having determined that both defendants had been negligent the court then decided that justice required that the burden of proving which of the defendants had caused either or both of plaintiff’s injuries be shifted to the defendants, so either could absolve himself, if possible, because it would be impossible for the plaintiff to show which of the two negligent actors had caused his harm. Summers v. Tice has had enormous precedential impact within the state
of California and persuasive authority in other jurisdictions in the area of product liability.
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
decision relating to the issue of liability where a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
cannot identify with specificity which among multiple defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s caused his harm. The case has had its greatest influence in the area of product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
in American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
jurisprudence.
Background
In Summers the plaintiff, Charles A. Summers, accompanied defendants Tice and Simonson as a guide on a quailQuail
Quail is a collective name for several genera of mid-sized birds generally considered in the order Galliformes. Old World quail are found in the family Phasianidae, while New World quail are found in the family Odontophoridae...
hunt
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
on November 20, 1945. Each of the defendants was armed with a 12 gauge
Gauge (bore diameter)
The gauge of a firearm is a unit of measurement used to express the diameter of the barrel. Gauge is determined from the weight of a solid sphere of lead that will fit the bore of the firearm, and is expressed as the multiplicative inverse of the sphere's weight as a fraction of a pound . Thus...
shotgun
Shotgun
A shotgun is a firearm that is usually designed to be fired from the shoulder, which uses the energy of a fixed shell to fire a number of small spherical pellets called shot, or a solid projectile called a slug...
loaded with shells
Shotgun shell
A shotgun shell is a self-contained cartridge loaded with lead shot or shotgun slug designed to be fired from a shotgun....
containing 7 size shot. Prior to going hunting
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." Plaintiff advanced ahead of the defendants up a hill
Hill
A hill is a landform that extends above the surrounding terrain. Hills often have a distinct summit, although in areas with scarp/dip topography a hill may refer to a particular section of flat terrain without a massive summit A hill is a landform that extends above the surrounding terrain. Hills...
, creating a triangle
Triangle
A triangle is one of the basic shapes of geometry: a polygon with three corners or vertices and three sides or edges which are line segments. A triangle with vertices A, B, and C is denoted ....
among the three men, with plaintiff front and center. The view of both defendants with respect to Summers was unobstructed, and both defendants knew his location, 75 yards from each of them. A quail flew to a 10 foot elevation above the plaintiff's head (approximately four feet higher than the plaintiff's head), both defendants shot at the quail, and bird shot struck plaintiff in his right eye
Human eye
The human eye is an organ which reacts to light for several purposes. As a conscious sense organ, the eye allows vision. Rod and cone cells in the retina allow conscious light perception and vision including color differentiation and the perception of depth...
and another in his upper lip
Lip
Lips are a visible body part at the mouth of humans and many animals. Lips are soft, movable, and serve as the opening for food intake and in the articulation of sound and speech...
.
Plaintiff sued both defendants for personal injuries. At trial it was established that each of two pellets had caused the injuries to plaintiff's lip and eye, respectively, and both might have been discharged from a single weapon (defendant) or each defendant may have contributed one of the injuring pellets. The trial court found that the defendants were negligent (i.e., that when they discharged their weapons they did not do so with ordinary prudence), and that the plaintiff was not contributorily negligent. The defendants appealed.
California Supreme Court ruling
On appeal the defendants argued that they were not joint tortfeasors because they were not acting in concert. On the subject of negligence, defendant Simonson contended that the evidence was insufficient to sustain the finding on that score. The court ruled that Simonson did not however point out wherein the plaintiff's evidence was lacking. Defendant Tice on the other hand stated in his opening brief that "we have decided not to argue the insufficiency of negligence on the part of defendant Tice." The court noted that Tice neither conceded the point nor argued it in his petition for a hearing before the court and the court therefore did not address that issue further. Accordingly, in their view, neither was liable, and they could not be held jointly and severally liable (i.e., each defendant was liable for the full amount of damages).The court affirmed the lower court ruling that that each defendant’s behavior fell below the standard of care (i.e., they were both negligent) and that the plaintiff's conduct did not contribute to his injury. Having determined that both defendants had been negligent the court then decided that justice required that the burden of proving which of the defendants had caused either or both of plaintiff’s injuries be shifted to the defendants, so either could absolve himself, if possible, because it would be impossible for the plaintiff to show which of the two negligent actors had caused his harm. Summers v. Tice has had enormous precedential impact within the state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
of California and persuasive authority in other jurisdictions in the area of product liability.
Further reading
- Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription by Donald G. Gifford. Ann Arbor, University of Michigan PressUniversity of Michigan PressThe University of Michigan Press is part of the University of Michigan Library and serves as a primary publishing unit of the University of Michigan, with special responsibility for the creation and promotion of scholarly, educational, and regional books and other materials in digital and print...
, 2010. ISBN 978-0-472-11714-7
External links
- Link to full text of case In PDF format
- Link to a summary of the case