For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he: (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
This case involved an auto accident in which appellant decedent's spouse was seriously injured and her husband killed. Appellee passenger was in the auto that collided with appellant's car. Appellant sued appellee for negligence, alleging that appellee substantially assisted or encouraged an intoxicated person to drive an automobile on public roads that resulted in a collision. Appellee moved for summary judgment contending he owed no duty to appellant. Appellee's summary judgment was granted by the trial court. On review, judgment was affirmed.
Did the court err in granting the motion for summary judgment because the evidence established the existence of both a duty and a question of material fact under the concert-of-action theory of liability.?
The court noted that the Texas Supreme Court had stated that whether the concert-of-action theory of liability was recognized in Texas was still an open question. Nevertheless, it examined the facts and concluded that appellant did not raise a material fact issue that appellee substantially assisted or encouraged the driver in operating the auto that collided with appellant. Accordingly, the summary judgment decision was affirmed.