Herman v. Wesgate

94 A.D.2d 938, 464 N.Y.S.2d 315 (App. Div. 1983)



Concerted action liability rests upon the principle that 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. An injured plaintiff may pursue any one joint tort-feasor on a concerted action theory. Such tort-feasor may, in turn, seek contribution from others who acted in concert with him. 


A guest at a bachelor's party was injured when he was thrown unwillingly overboard. The injured guest filed an action against the boat owners, the host, and other guests and alleged concerted action by all of them under a concerted action theory. The trial court denied certain guests' motion for summary judgment, but at the same time, granted summary judgment to two other guests. 


Was summary judgment for two defendants proper in a case alleging a concerted action by several defendants?




The Court held that summary judgment for those two guests was improper. The court held that the injured guest could pursue any one joint tort-feasor on a concerted action theory. The court noted that the conduct of the host and guests alleged to be dangerous and tortious was the pushing or throwing of guests, against their will, from the barge into the water. The court held that the liability of an individual guest did not depend upon whether he actually propelled the injured guest into the water, but that participation in the concerted activity was equivalent to participation in the accident resulting in the injury. The court then held that whether the guests acted in concert was a question for the jury, and thus, summary judgment for two of the guests was not appropriate in this case.

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