--- title: "Summers v. Tice" type: Landmark Case source: https://casebriefly.com/landmark-cases/summers-v-tice --- # Summers v. Tice Summers v. Tice established the alternative liability theory, holding that when two or more defendants act negligently and it is impossible for the plaintiff to determine which defendant actually caused the injury, the burden of proof on causation shifts to the defendants. Each defendant must then prove that he did not cause the harm, or face joint and several liability. ## Citation 33 Cal. 2d 80, 199 P.2d 1 (1948) ## Year 1948 ## Court Supreme Court of California ## Facts Charles Summers went quail hunting with defendants Tice and Simonson. Both defendants negligently fired their shotguns in the direction of the plaintiff at approximately the same time. Summers was struck in the eye and lip by birdshot. Because both defendants used the same gauge shotguns and similar shot, it was impossible to determine which defendant's shot actually struck the plaintiff. ## Procedural History The trial court found both defendants liable. The Supreme Court of California affirmed, applying the alternative liability theory. ## Issue Whether a plaintiff who is injured by one of two negligent defendants, but cannot determine which one actually caused the injury, can hold both defendants liable. ## Holding The court held that when all defendants acted negligently toward the plaintiff and the plaintiff cannot reasonably determine which defendant caused the injury, the burden of proof on causation shifts to each defendant. Each defendant must prove that his negligent act was not the cause of the plaintiff's injury; if neither can do so, both are held jointly and severally liable. ## Reasoning The court reasoned that it would be unjust to deny recovery to a plaintiff who was clearly injured by one of the defendants simply because the plaintiff could not prove which defendant's shot caused the harm. Both defendants were wrongdoers, and as between an innocent plaintiff and negligent defendants, the burden of uncertainty should fall on the defendants. The court drew on the analogy of defendants who jointly act in concert and noted that the defendants were in a better position than the plaintiff to determine which of them caused the injury. If neither defendant could exonerate himself, both should bear the liability. ## Impact Summers v. Tice established alternative liability as a recognized theory in American tort law, codified in Restatement (Second) of Torts Section 433B(3). The case became the foundation for later innovations in causation doctrine, particularly the market share liability theory of Sindell v. Abbott Laboratories. It is one of the most widely taught cases on the topic of causation in uncertainty and continues to influence the development of joint liability doctrines. ## Key Quotes - When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. - They are both wrongdoers — both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. ## Related Cases - sindell-v-abbott-laboratories - byrne-v-boadle - escola-v-coca-cola-bottling - palsgraf-v-long-island-railroad ## Exam Relevance Alternative liability is commonly tested on exams involving multiple defendants. Students should be prepared to identify when the doctrine applies (all defendants negligent, impossible for plaintiff to identify the actual cause) and distinguish it from concert of action and market share liability. ## Study Tips - Know the two requirements: (1) all defendants acted negligently toward the plaintiff, and (2) the plaintiff cannot determine which defendant's conduct actually caused the injury. - Understand that alternative liability imposes joint and several liability, unlike market share liability, which imposes proportional liability. - Distinguish from concert of action, which requires an agreement or common plan among defendants. - Connect this case to Sindell and understand how market share liability adapted the alternative liability framework for mass tort cases. ## Doctrine Established Alternative Liability / Burden-Shifting on Causation --- Source: [Summers v. Tice — CaseBriefly](https://casebriefly.com/landmark-cases/summers-v-tice)