Summary of Summers v. Tice, et al., 33 Cal.2d 80 199 P.2d 1 
Facts: On November 20, 1945, plaintiff Summers and the two defendants [consolidated] Tice and Simonson, were hunting quail on an open range. Both defendants were using a 12 gauge shotgun, with 7-1/2 size shot. Prior to hunting, plaintiff discussed the hunting procedures with the defendants, saying they should all “stay in line" and also ensured they knew to exercise care while hunting.
While out on the range, plaintiff went up a hill, rather than “stay in line," placing all three hunters in a triangle. However, both defendants were able to see plaintiff with an unobstructed view and they knew his location.
A quail rose and flew between plaintiff and defendants, who were approximately 75 yards apart. Both defendants shot at the quail, shooting in plaintiff’s direction. Plaintiff was struck in the eye and upper lip. It was found by the court that the shots which struck plaintiff were shot by the defendants at about the same time or one immediately after the other. It was also found that both defendants were negligent and that plaintiff was not contributorily negligent.
History: The trial court found for the plaintiff. Defendants appealed.
Issue: Was plaintiff guilty of contributory negligence, and should the judgment against both defendants stand, since they were not acting in concert?
Ruling: Yes to both. The Supreme Court of California affirmed the trial court’s judgment.
Rule/Analysis: Defendant Simonson stated that plaintiff was guilty of contributory negligence because, as a hunter, he assumed the risks involved in hunting. Although plaintiff suggested they “stay in line" and he instead went uphill, it was apparent that both defendants were aware of plaintiff’s position and were able to see him. Therefore, it was held that the trial court was justified in finding that plaintiff did not assume the risk or act other than as a reasonable person under the circumstances.
Defendant Tice argued that there was evidence to show that the shot which struck plaintiff was from Simonson’s gun, due to admissions made by Simonson to third parties. However, there was no evidence to prove that the shots came from Simonson’s gun and the court was not able to find which defendant was at fault. Therefore, it was found that both defendants were jointly and severally liable for plaintiff’s injuries.
Summary: The general rule is that when two or more defendants are negligent and it cannot be determined as to who caused the injury, it would be unfair to exonerate either from liability. Each defendant has the burden of proving the other was the sole cause of harm. Since neither defendant in this case was able to do so, the court had no choice but to uphold the judgment.