Summers v. Tice

"Summers v. Tice", [http://online.ceb.com/calcases/C2/33C2d80.htm 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 specifically identify which among multiple defendants caused his harm. The case has had its greatest influence in the area of product liability, especially with regard to pharmaceutical products.

Background

In "Summers" the plaintiff, Charles A. Summers, accompanied defendants Tice and Simonson on a quail hunt. 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 (2) pellets had caused the injuries to plaintiff's lip and eye, respectively, and both might have been discharged from one weapon (defendant) or each defendant 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, and there was no evidence to show which of them discharged one or both pellets that harmed plaintiff. 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.

Significance of Summers v. Tice

"Summers v. Tice" has had enormous precedential impact in the area of product liability, most notably pharmaceutical (e.g., the drug diethylstilbestrol, known as ‘DES’). See "Sindell v. Abbott Laboratories".