Herman v. Wesgate

Appellate Division of the Supreme Court of New York, Fourth Department · Torts

TortsConcerted action liabilitySummary judgmentconcerted actionjoint tortfeasorsummary judgmentdismissalquestion of fact

Facts

Plaintiff was injured while attending a stag party on a barge owned by Donald Wesgate and Thomas Rouse. After a three-hour cruise, the barge was anchored near shore in water about two feet deep off the bow, and some guests began throwing others, still clothed and against their will, off the bow into the water. Two or more individuals escorted plaintiff to the bow, and he unwillingly went overboard. He suffered head or neck trauma that injured his spinal cord.

Issue

Whether dismissal and summary judgment were proper for defendants John Hauck and James Hauck when the complaint alleged that all defendants acted in concert in the dangerous practice of pushing or throwing guests off the barge. More specifically, the question was whether an individual defendant may be liable even if he did not personally propel plaintiff into the water.

Rule

All persons who, pursuant to a common plan or design to commit a tortious act, actively participate in it, further it by cooperation or request, lend aid or encouragement to the wrongdoer, or ratify and adopt the acts are equally liable under a concerted action theory. An individual defendant's liability does not depend on whether he personally caused the final harmful contact, because participation in the concerted activity is equivalent to participation in the accident resulting in injury. Whether codefendants acted in concert is generally a question for the jury, so summary judgment is improper where the record presents factual disputes on that issue.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a rooftop party in Buffalo, several guests started a prank of shoving unwilling attendees into a small inflatable pool set up on the patio. Nolan Price did not push Ava Moreno himself, but he grabbed her arm, walked her toward the pool while laughing, and told the others to "go ahead" before someone else shoved her in, causing her to strike her head.

If Ava sues Nolan for her injuries, which is the strongest argument for denying Nolan's motion to dismiss?

Explanation. The governing rule is that all persons acting pursuant to a common plan or design to commit a tortious act are equally liable if they actively participate, further the act by cooperation or request, lend aid or encouragement, or ratify and adopt it. Liability does not depend on personally causing the final harmful contact. Because Nolan allegedly helped escort Ava and encouraged the shove, the complaint states a valid concerted-action claim against him. (Derived from Herman v. Wesgate (n.d.).)