199 P.2d 1 (Cal. 1948)
On November 20, 1945, plaintiff Summers went quail hunting on the open range with defendants Tice and Simonson.1 Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot.2 Before the hunt began, the plaintiff discussed the hunting procedure with the defendants and indicated that they were to exercise care when shooting and to keep in line.3
During the course of the hunt, the plaintiff proceeded up a hill, placing the hunters at the points of a triangle.4 The defendants had an unobstructed view of the plaintiff and knew his location.5 Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and defendants.6 At that time defendants were 75 yards from plaintiff.7 Both defendants shot at the quail, shooting in plaintiff's direction.8 One shot struck plaintiff in his eye and another in his upper lip, causing injury to his right eye and face.9 The plaintiff subsequently filed suit against both defendants seeking damages for these personal injuries.10
The case was tried by the court without a jury.11 The trial court found that defendants were negligent in so shooting and plaintiff was not contributorily negligent.12 Each of the defendants appealed from the judgment entered against them, and the appeals were consolidated pursuant to stipulation.13
Whether the evidence supports the trial court's finding that both defendants were negligent?14
Yes. Both defendants at about the same time shot at a quail and in so doing shot toward plaintiff who was uphill from them, and they knew his location.17 That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence.18 The issue was one of fact for the trial court.19
Defendant Tice stated he decided not to argue the insufficiency of negligence on his part.20 Defendant Simonson presented no basis to overturn the factual determination.21 The trial court properly resolved the factual question of negligence against both defendants based on their decision to fire in the plaintiff's direction despite an unobstructed view and prior discussion of safety procedures.22
The evidence supports the trial court's finding that both defendants were negligent.23
Whether the plaintiff was contributorily negligent or assumed the risk as a matter of law?24
No. Plaintiff suggested that the hunters stay in line while hunting and cautioned that they use care, yet proceeded uphill at a right angle after defendants knew his position.27 Such conduct does not constitute assumption of the risk or contributory negligence as a matter of law.28 The trial court was justified in finding that plaintiff did not assume the risk or act other than as a person of ordinary prudence under the circumstances.29 None of the cases cited by defendants are in point on these facts.30
Plaintiff exercised reasonable care by discussing safety procedures before the hunt and by relying on defendants' knowledge of his location.31
The plaintiff was not contributorily negligent or did not assume the risk as a matter of law.32
Whether the trial court sufficiently found that the negligence of both defendants caused the plaintiff's injuries?33
The trial court found that both defendants were negligent.34 A finding that as a direct and proximate result of the shots fired by defendants, and each of them, the pellets lodged in plaintiff's eye and lip sufficiently establishes joint causation even without identifying which specific shot came from which gun.35
Yes. The court found that both defendants were negligent.36 As a direct and proximate result of the shots fired by defendants and each of them, a birdshot pellet lodged in plaintiff's right eye and another in his upper lip.37 In so doing the court determined that the negligence of both defendants was the legal cause of the injury.38 Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other.39
The one shot that entered plaintiff's eye was the major factor in assessing damages.40 That shot could not have come from the gun of both defendants.41 Yet the joint finding stands.42
The trial court sufficiently found that the negligence of both defendants caused the plaintiff's injuries.43
Whether both defendants may be held liable for the plaintiff's injuries when it cannot be determined which defendant's shot caused the harm?44
When two or more negligent actors create a situation where the negligence of one caused the injury but the plaintiff cannot identify which one, the burden shifts to each defendant to absolve himself.45 Both may be held jointly and severally liable on policy grounds to avoid leaving the injured party remediless.46
Yes. Defendants are both wrongdoers, both negligent toward plaintiff.47 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.48 The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm.49
If one can escape the other may also and plaintiff is remediless.50 Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury.51 This reasoning has recently found favor in this court in analogous situations where the chief evidence of the true cause is practically accessible to the defendants but inaccessible to the injured person.52 The same rule applies whether defendants are deemed to be acting in concert or independently, as the practical unfairness of denying redress because the plaintiff cannot prove how much damage each did supports joint liability.53
The Restatement of Torts and commentators such as Wigmore confirm that the rule should apply whenever the harm has plural causes and the difficulty of proof would otherwise exonerate negligent parties.54
Both defendants may be held liable for the plaintiff's injuries when it cannot be determined which defendant's shot caused the harm.55