Woodland Hills personal injury lawyer Barry P. Goldberg has met with clients who really have no idea how a car accident occurred and who was responsible for their injuries. An “internet educated” client asked me if we could make the prospective defendants prove who caused the accident. The client said she read something about “Summers v. Tice.” A little internet education can be confusing. The answer is you can effectively “shift the burden of proof”, but the doctrine of Summers v. Tice rarely applies.
The case regarding shifting the burden of proof is Summers v. Tice (1948) 33 Cal.2d 80. In that case, two men quail hunting fired shotguns simultaneously and injured plaintiff, who could not ascertain which of the shots hit him. The California Supreme Court held both of the defendants were negligent and that in considering “the relative position of the parties and the results that would flow if [the] plaintiff was required to pin the injury on one of the defendants only,” the burden of proof with respect to who caused the injury should be shifted to the defendants. (Id at p. 86.) “[I]t should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm.” (Id.)
That case probably does not apply in a car accident case even though multiple defendants may be at fault and that it is unfair to make the plaintiff prove which driver was at fault—particularly, if the plaintiff was hit from behind. Of course, in the Summers case, there was no question as to the fact one of the two hunters caused the injury. The issue was the lack of proof regarding which of the two was at fault. The court determined to shift the burden of proof to defendants because it was absolutely clear the injury was caused by one of the men.
In most car accident cases, the exact cause of plaintiff’s injury is unclear. The defendants can offer different theories of fault and liability. Unlike the Summers case, in a typical car accident, it is not clear or necessarily established that all possible defendants were negligent. Accordingly, the courts hold that it is unfair to excuse Plaintiff from her burden of proving duty, breach, and causation before prevailing in her negligence action.
However, all is not lost. As a practical matter, when a plaintiff sues multiple defendants, they will cross-complain against each other and do the plaintiff’s work for her. Judges and juries respond favorably to car accident lawyer Barry P. Goldberg that plaintiff may not know exactly who was primarily at fault. However, it was one or both of the defendants. It is up to the jury to decide the respective percentages from 100% to 0%. So, the burden of proof is essentially shifted without “Summers v. Tice.”
