Summers v.Tice – (Problems in Determining which Party Caused the Harm)
Situation: 3 guys go hunting. All 3 online with each other and then one goes up hill with the other two knowing his location. A bird pops up near where the one hunter was and the 2 Defendants both shoot at it and the Plaintiff is injured in 2 places by indistinguishible birdshot (which both could have been from the same shotgun) and it is not known whether one or both Defendants hit the Plaintiff. They are appealing in one appeal as Defendants who are have been viewed as Joint Tortfeasors.
Defendant Simpson: Argues that the Plaintiff was is liable for contributory negligence because he assumed the risk of going hunting. Simpson did not argue against his having been negligent.
Case Law Cited: Oliver v. Miles, 144 Miss. 852: Both hunters held liable though only one could have caused the injury. The actions of the Defendants are in concert. Both are negligent because the exact same action of both individuals taken at the exact same time was individually a sufficiently careless enough of an action to one or the other have caused the damage to the injured party. To rule otherwise would be to exonerate both from liability and negligence caused the damage to the injured party.
From Kraft v. Smith, 24 Cal.2d 124 & Hernandez v. Southern California Gas Co.,213 Cal. 384:
- Restatement of Torts 876 (b) (c) states: harm resulting to a third person from the tortious conduct of another, a person is held liable if: they (b) know the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself or, (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
- It has to be that two people engage in the same act simultaneously and it is not possible to determine which one of the two acts committed simultaneously has caused the de facto damage for both to be liable jointly.
- The burden to absolve themselves falls upon the Defendant. This is because it is unfair to put the Plaintiff in the position to pick which one of the multiple joint tortfeasors cause the damage. If they pick one and they absolve themselves the Plaintiff is very likely not to be able to obtain a recovery. Also the Defendant’s are much more likely to produce evidence against one of them.
- Res Ipsa Loquitur is not an effective argument because the Plaintiff simply does not know under whose exclusive control the element that caused damage was ie. in this case the birdshot that hit the eye and the birdshot that hit the lip.
Defendants relied on Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App.629: Car knocks down a pedestrian and another third party then hits the prostrate person. This was bad case law to bring up because it involves an intervening cause which is not present in the case at bench.
Defendants tried to argue:
- That the Defendants were not joint tortfeasors but tortfeasors who acted independently of eachother and the Plaintiff was required to establish the damage caused by each.
- This argument did not work because it is impossible to determine who caused what part of the damage. It has to be at least possible.
The wrongdoers should be left to workout between themselves the apportionment of damages. The trier of fact is in a position to make an estimate of apportionment of damages. The wrongdoers are not in a position to complain of uncertainty (California O. Co. v. Riverside P.C. Co.)
Each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.
(Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred)
(Appellant Tice’s petition for rehearing was denied December 16, 1948)