Herman v. Wesgate
1983 N.Y. App. Div. LEXIS 18395, 94 A.D.2d 938, 464 N.Y.S.2d 315 (1983)
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Rule of Law:
Under the concerted action theory of liability, a person who, in pursuance of a common plan or design to commit a tortious act, actively takes part in it, furthers it, lends aid or encouragement, or ratifies it, is equally liable with the person who directly causes the resulting injury.
Facts:
- Plaintiff Herman attended a stag party for defendant Thomas Hauck held on a barge.
- The barge was owned by defendants Donald Wesgate and Thomas Rouse.
- After a cruise, the barge was anchored in Irondequoit Bay in water that was approximately two feet deep off the bow.
- Several guests at the party began throwing other clothed guests, against their will, off the bow of the barge into the shallow water.
- Two or more individuals escorted Herman to the bow of the barge where he unwillingly went overboard.
- As a result of going overboard, Herman suffered a traumatic injury to his spinal cord.
Procedural Posture:
- Plaintiff Herman filed a personal injury complaint against multiple defendants in the Supreme Court, Monroe County, a trial-level court in New York.
- Defendant John Hauck moved for dismissal of the complaint and for summary judgment.
- The trial court granted John Hauck's motion.
- Defendant James Hauck also moved for dismissal and summary judgment.
- The trial court granted James Hauck's motion.
- Plaintiff appealed the trial court's orders granting summary judgment in favor of defendants John Hauck and James Hauck to the Appellate Division of the Supreme Court.
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Issue:
Under a concerted action theory of liability, can a defendant who did not personally cause the plaintiff's injury nonetheless be held liable if they actively participated in the group conduct that led to the harm?
Opinions:
Majority - Per Curiam
Yes. A defendant can be held liable under a concerted action theory even if they did not personally cause the plaintiff's injury, because participation in the common tortious activity is equivalent to participation in the accident. The court reasoned that concerted action liability makes all participants in a common plan to commit a tortious act equally liable. The dangerous and tortious conduct was the group activity of throwing guests from the barge. Therefore, an individual defendant's liability does not depend on whether they were the one who actually propelled the plaintiff into the water. The court concluded that whether the defendants acted in concert is a question of fact for a jury to decide, making summary judgment for defendants John Hauck and James Hauck improper.
Analysis:
This decision reinforces the tort principle of concerted action, making it clear that liability for group-related torts extends beyond the primary actor to anyone who aids, encourages, or participates in the wrongful plan. It is significant for plaintiffs injured in situations involving group misconduct, such as hazing or brawls, as it alleviates the often difficult burden of proving which specific individual in the group caused the direct injury. The ruling establishes that mere participation in the tortious scheme is sufficient to create liability, thereby broadening the pool of potential defendants and strengthening the position of plaintiffs in such cases.
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