Summers, Tice, and another guy were all out quail
hunting. Summers went ahead, a quail appeared, both Tice and the other
guy shot at it, and some of the shot pellets hit Summers in the face.
It was determined that Summers was not contributorily
negligent.
The major damage to Summers was one single pellet that hit
him in the eye.
That pellet could not have come from both guns. But it
was not possible to determine whose gun fired the offending pellet.
The Trial Court held both defendants equally liable for
Summers' injury. They appealed.
The Trial Court said, "We think that each is liable
for the resulting injury, although no one could say who actually shot
him. To hold otherwise would be to exonerate both from liability,
although each was negligent and the injury resulted from such negligence."
The Appellate Court affirmed.
The Appellate Court felt that the burden of proof should
rest on the defendants, not on the plaintiff.
If one defendant could show that the other defendant
fired the fatal shot, then they could escape liability. If they can't
prove the other guy did it, then both will be held liable.
In Doe v. Baxter Healthcare Corp. (380 F.3d 399
(8th Circuit 2004)), this doctrine was extended. It was held that a
defendant can be held liable even if it is highly unlikely that
their actions caused the damage, as long as it cannot be shown that the
actions could not have caused the damages.
