Buck, Dick and Buddy were old college friends who hunted together every year over dove season’s opening weekend. This year, plenty of summer rainfall filled up even the shallowest tanks, so the dove were not flying to water like normal. So the three friends started down a sunflower row, each carrying a 12-gauge shotgun with #7-½ shot in an attempt to “stir up” the birds. While walking, Buddy moved up a hill placing Dick and Buck at the points of a triangle. A dove took to flight resulting in both Buck and Dick shooting in Buddy’s direction. Tragically, Buddy was hit by shot in the right eye and blinded. Who is liable?
Under current Texas law, if Buddy establishes that one or both of his friends pulled the fateful trigger even without proving which one, then Dick and Buck must each prove it was not their fault. Until one shows no responsibility, then each is fully responsible for the accident. The court will treat both Dick and Buck as jointly and severally (or each fully) liable unless one can show no fault at all. This public policy that makes Dick and Buck both responsible avoids the practical unfairness of denying Buddy recovery simply because he cannot prove who and how much damage each defendant did, when it is certain that between them both they did it all.
For more information about the law in Texas and other states concerning joint and several liability in hunting and other situations, see Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529 (Tex. App.—Corpus Christi 1993) affirmed, 890 S.W.2d 796 (Tex. 1994); Summers v. Tice, 199 P.2d 1 (Cal. 1948); Restatement (Second) of Torts § 433B(2).