Summers v. Tice

Supreme Court of California, 1948.

33 Cal.2d 80, 199 P.2d 1.

Prosser, pp. 279-281


Facts: Two guys were trying to shoot a quail but missed and one of them hit the plaintiff.  Nobody knows which one, but one and only one defendant hit the plaintiff.  The plaintiff sued and won verdicts at trial against both defendants.


Issue: Can both defendants be held liable when only one was in fact responsible?


Rule: Both defendants may be held liable if both were negligent.


Analysis: As a matter of policy, confusion over who dunnit should not bar recovery by the plaintiff.  Since the court finds that both defendants were negligent and thus both in the wrong, it is not considered unfair to make them both pay.  The court argues that if one was more responsible than the other, they should fight it out amongst themselves.


Conclusion: The judgment of the trial court was affirmed.


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