Lussier v. Bessette

2010 VT 104, 189 Vt. 95, 16 A.3d 580

 

RULE:

Although a person who encourages another to commit a tortious act may be responsible for acts by the other, ordinarily he is not liable for other acts that, although done in connection with the intended tortious act, were not foreseeable by him.

FACTS:

Defendants were hunting with a friend who accidentally shot and killed the decedent, who was seated in a tractor. Defendants were engaged in a form of hunting known as "pushing" or "driving," where they walked through an area in a line to force game towards the friend. Defendants had no direct knowledge of the friend's location, his surroundings, or the location of the tractor. They did not know that he did not have a hunting license and they did not know that he had pointed his gun with the safety off at the tractor or even that he was aiming in an unsafe direction. There was nothing in the hunting plan--walking through the woods to flush a deer--that would have the friend's hunting violations as its natural and probable result.

ISSUE:

Are the defendants also liable for the death committed by their friend?

ANSWER:

No

CONCLUSION:

The court stated that the trial court properly held that defendants were not liable under a concerted action theory under Restatement (Second) of Torts § 876 (1979). Even assuming that the hunting plan was negligent, it was not foreseeable that as part of this plan the friend would engage in these hunting violations that proximately caused the decedent's death.

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