Tuesday, December 6, 2011
Summers v. Tice is an iconic first-year Torts case. Kyle Graham (Santa Clara), guest blogging at Concurring Opinions, visited the California State Archive and reviewed the old case file. His research provides interesting information on the case background:
Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant. Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction. Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home. These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.