Two Guns, One Face (Summers v Tice)

Laying Down the Law with Billy DeClercq, Esq.

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Summers v. Tice (Nov. 17, 1948) 33 Cal. 2d 80

Facts: Charles Summers was a guide on on a hunting trip with two defendants, Tice and Simonsen. Summers explained to safely fire their weapons. A quail flew, two guns went off, and Summers was shot twice - in his right eye and lip -- with bird shot discharged from a shotgun. Both defendants had identical guns and both guns went off, and nobody knew which defendant actually shot Summers.

In trial court, there was a judgment against both defendants. Two pellets had caused the injuries to plaintiff's lip and eye, an both might have been discharged from a single weapon (defendant) or each defendant may have contributed one of the injuring pellets. The defendants were both found negligent, and that the plaintiff was not at fault. Defendants appealed, claiming they are not jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries -- the shot fired by Tice and/or the shot fired by Simonson.

Holding: Both defendants are liable as joint tortfeasors, because it could not be determined which was responsible. The reason for the rule is that it unfair to deny the injured person recovery simply because he cannot prove how much damage each did, when it is certain that between them they did all the damage.

Reasoning: "When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm." (citing Wigmore)

Lauren, Jeremy, and Pia explore the comedic implications of this Cheney-esque fact pattern. According to Jeremy, it happens more often than you think!

Shout out to non-profit California Lawyers for the Arts www.calawyersforthearts.org Serving the creative arts and innovation community since 1974! California Lawyers for the Arts [CLA] is a non-profit organization founded in 1974 to provide legal services to artists and members of the creative arts community. In 1987, Bay Area Lawyers for the Arts [BALA] joined forces with Volunteer Lawyers for the Arts-Los Angeles [VLA] to form California Lawyers for the Arts as a statewide organization. CLA is part of an informal network of “Volunteer Lawyers for the Arts” programs that serve artists through state-based organizations throughout the United States. CLA is a multi-faceted arts service organization that provides legal support, alternative dispute resolution services, educational programs and advocacy for the arts and justice reform.

Thank you to our guests:

• Lauren Michaels @sweetrelishfilms
• Jeremy Harlin @king_jeremyharlin
• Pia Smith @piaminskystyle

LAYING DOWN THE LAW is created by Beyond UNreasonable Doubt and produced by Feightner Productions (fytepro.com). Theme music by David Felton. Cover Art by Q (@TheMightyQWorks). Follow Billy DeClercq on Twitter: @MaxHeadroomEsq

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