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Spring 2000


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7. Whose Fault Is It Anyway?
Alice, John, and Henry go quail hunting. A quail is flushed and they all take aim. Alice and John fire negligently in Henry's direction, missing the quail, but a pellet strikes Henry in the eye. Both Alice and John were standing equidistant from Henry and both were using similar type guns and similar type buck-shot. Henry sues but at the trial he is unable to prove from whose gun the pellet came. Should Henry win his suit?



Commentary. Here both John and Alice have become involved in a tort case. Henry alleges that they acted negligently towards him and that they should pay for his injury. Should John and Alice be held liable for Henry's medical bills, as Henry claims in his suit? Or should neither have to pay? Or perhaps John should pay but not Alice? Or Alice but not John? What do you think?

Since Henry is unable to prove from whose gun the pellet came, it is tempting to think that neither John nor Alice should have to pay for his injury. After all, Henry has not been able to prove who caused his injury. Then again, it may be equally tempting to think that John and should split the costs since neither of them can prove they didn't do it. What do you think? Which do you think it should be?

Bizarre as it may seem, this puzzler, too, is based on an actual case. The case, Summers v. Tice, has become a classic in the annals of tort law. The Calfornia Supreme Court decided that Tice and Simonson who fired negligently in Summers' direction, were "jointly and severally" liable for Summer's injury. So if we follow the Court in the actual case, the answer is "both." John and Alice should share the costs of Henry's injury. As a matter of fact, a finding of "joint and several liability" might result in Henry's recovering more from one party than the other, but given the liklihood of a "suit for contribuition," the California decision comes to more or less the conclusion that John and Alice should spit the costs. Is this a good answer?

Imagine that in the course of John's and Alice's trial, it is proven that the pellet which lodged in Henry's eye came from John's gun. So John, not Alice, caused Henry's injury. Now we know that Alice did not do it. So she is not to blame for Henry's injury and if she is not to blame, she should not be held liable for its costs and she should be dismissed from Henry's suit, no? What do you think? If you were the Judge in this revised version of the case, would you, now that we know that the pellet that hit Henry came from John's gun, dismiss Alice from the case?

Why not dismiss her from the suit? Well, her conduct was just as negligent as John's and by acting as she did, she imposed as much of a risk of injury on Henry as John did. So they were both equally negligent and they both imposed the same risk of harm on Henry. Why should Alice escape liability for Henry's injuries and John have to pay? Why indeed? So as the Judge in this case are you not going to dismiss Alice from the suit? But if you do not dismiss her from the suit, aren't you forgetting or overlooking the fact that John, not Alice, caused Henry's injury? If you do not dismiss her, don't you have to think who did it is unimportant in this case and adopt the position that since John and Alice acted equally badly and imposed the same risk of harm on Henry, they ought to be held equally liable for his injury, even though only one of them, i.e. John, actually caused Henry's injury. So perhaps Alice should be dismissed from the suit after all.

But now what about Puzzler Number Seven in its unadulterated form and the actual case upon which it is based? In the actual case, the California Supreme Court argued that the standard practice of placing the burden of proof on the complainant to establish that a defendant who acted negligently towards him caused his injury should be abandoned in this case because to adhere to the standard would leave him without a remedy or compensation. The burden of proof should instead be shifted in this case, the Court argued, to the defendants. Each should have to prove that they did not cause the injury and, if they cannot, then both of them should be liable. Since they could not, both were held to be liable. On this line of reasoning, it does not matter if Alice didn't cause Henry's injury (if in fact it wasn't her) and it does not matter that John didn't cause Henry's injury (if in fact it wasn't him). What matters is they both acted equally badly, and for that they both should have to pay.

A small but increasing number of recent cases have taken the position that judgments about who caused an injury should play little or no role in determining responsibility. Most of us, who read our crime novels and wonder about "whodunit," believe just the opposite. Most of us believe that a person should not be held responsible for an injury that he did not cause. The California decision in Summers v. Tice illustrates the declining importance of cause in tort law. It is part of a larger trend in legal and moral theorizing to take causality less seriously. To legal sophisticates who are nowhere near as enamored of causation as the rest of us, this is a welcome development. To the rest of us it is a cause of no small concern. What do you think?

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