Torts I, Pages 303–304

Summers v. Tice

Supreme Court of California, 1948


Plaintiff and defendants were hunting when both defendants shot at a quill and one of them hit plaintiff in the eye. No party knew which defendant shot plaintiff.

Procedural History:

Trial court found for plaintiff against both defendants.


If two defendants shoot at plaintiff and only one hits without knowing which, are both defendants liable?

Defendant's Argument:

Only one person could have shot plaintiff so only one person should be liable.


Bell: Where both act negligently but only one is liable, the burden of proof shifts to the defendant.


  • All wrong-doers must be before the court for the rule to apply.

  • The burden only shifts if all are wrong-doers

  • The Restatements 2nd and 3rd proved this rule.

  • In medical cases, defendant's burden is to show they didn't breach their duty, not that they did not cause the harm.


To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence.


When two people both shoot at something, they are both liable for the resulting harm, even if only one of them hits without knowing which did so.



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