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All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him. Mere knowledge by each party of what the other is doing is not sufficient concert to make each liable for the acts of the other since one man ordinarily owes no duty to take affirmative steps to interfere with another's activities absent some special relationship. It is essential that each particular defendant who is to be charged with responsibility shall be proceeding tortiously, which is to say with intent to commit a tort, or with negligence. One who innocently, and carefully, does an act which furthers the tortious purpose of another is not acting in concert with him.
Plaintiff filed a wrongful death action after the decedent was killed by an errant bullet. At the time decedent was shot, the defendants were shooting at a mudhen with the weapon that killed the decedent and in the direction of the road where decedent was shot. The trial court granted summary judgment in favor of defendants.
Was the so-called “concert of action” doctrine applicable in this case?
The two shooters had to be held as defendants under the concerted action theory because they pursued a common plan to commit a tortious act.