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Concerted Action Case Analysis

By: dmc-admin//November 22, 2006//

Concerted Action Case Analysis

By: dmc-admin//November 22, 2006//

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In light of the court’s holding, it is clear that it will be a very rare case in which the concerted action theory applies. Other than the instance of two defendants engaged in drag racing, the court suggests no fact pattern in which it could apply.

One other seemingly appropriate application would be a variation on the classic torts case of Summers v. Tice, 199 P.2d 1 (1948). In Summers, two hunters both shot negligently at a quail; one of the two hit the plaintiff, but it could not be determined which. Both were deemed joint and severally liable, for to hold otherwise would exonerate both from liability.

Presumably, today, it could be determined which of the hunters caused the injury. Nevertheless, under the concerted action theory, all the negligent hunters involved could be found jointly and severally liable, even if it could be shown that he did not fire the shot that caused injury.

However, it is clear from the court’s opinion that the doctrine will be applied rarely. When it is, an interesting question that will arise in those rare cases is whether the court should actually give the new WIS JI — CIVIL 1740 to the jury.

In this case, for instance, even though the parties stipulated to the facts and the apportionment of negligence, the parties and the trial judge apparently operated under an assumption at the trial level that it was a question of fact whether the parties acted in accordance with a common scheme or plan under sec. 895.045(2).

Similarly, the Civil Jury Instruction Committee’s comment to the instruction states, “The Committee believes that the question of whether parties have acted in accordance with a common scheme or plan is a question of fact for the factfinder.”

The court of appeals, however, applied de novo review. This suggests that the question may be one of law, for the trial court to decide in the first instance, rather than a jury.

In a footnote, the court wrote, “Although the parties agreed to allow the trial court to function as the fact finder and the trial court ultimately concluded that a ‘common scheme or plan’ did exist, the issue before us is the propriety of the trial court’s initial legal conclusion that an issue of fact existed, that is, whether Wis. Stat. sec. 893.045(2) applies to this case. As such, this issue is a legal question that we review independently.”

In most cases, it would seem that, even if the court finds, as a matter of law, that the statute applies, there is nothing to ask the jury.

Such an interpretation is bolstered by a discussion by the court on the difference between concerted action and comparative negligence.

The court wrote, “the liability in a situation involving concerted action is not merely joint and several, but equal among all of the negligent parties, making a determination of relative negligence unnecessary.

Therefore, in a case where the relative negligence of each defendant is assessed individually, a concerted action inquiry would be inherently inconsistent and may not be undertaken (emphasis in original)(cites omitted).

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Concerted action liability limited

Consider the hypothetical example of the drag racers. Because concerted action liability is a question of law, then (to use the example where defendants A and B are allegedly drag racing, but only A actually causes the injury to the plaintiff), the only question the jury should be asked relative to B is, “was B drag racing, too?”

If the jury answers “yes,” he is jointly and severally liable.

If it is undisputed that B was drag racing, there should be nothing to ask the jury, at all.

Thus, although the court found that WIS JI — CIVIL 1740 accurately states the law, in most cases, even where the concerted action theory applies, the jury instructions would be clearer without it.

– David Ziemer

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David Ziemer can be reached by email.

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