“In this appeal we decide whether participants in a brawl can be held jointly liable under Arizona Revised Statutes (“A.R.S.”) section 12-2506(D)(1) (2003) for injuries inflicted on common foes.” The answer is “yes,” except when it’s “no.”

Plaintiffs and Defendants were in a bar fight. According to Plaintiffs (the trial court granted summary judgment for defendants, so the Court of Appeals views the facts favorablly to Plaintiffs), they were beaten up by a group of men including Defendants. They couldn’t identify which assailant did what, though, so they sued them jointly and severally, on the theory that Defendants were acting in concert (that’s 12-2506(D(1) – joint and several for acting in concert).

A.R.S. § 12-2506(F)(1) defines acting in concert: “entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort.” The question here was whether the defendants did that. “[A] prima facie case . . .  requires evidence that the parties (a) knowingly agreed to commit an intentional tort that (b) they were certain or substantially certain would result in the consequences complained of, and (c) actively participated in commission of the tort,” Mein (2008). (This was a drag-race case; the race cases are traditionally a main source of acting-in-concert law.) In Mein injury wasn’t substantially certain but with punching and kicking people it is. Conscious agreement can be inferred from circumstances. The jury could have done so here.

The court reverses summary judgment for defendants and remands.

This is a commendably  brief and clearly-written opinion. The opening sentence (quoted above) is perhaps a bit overblown, as this is more a factual issue than a legal one, but the immediate announcement of the factual context, issue, and holding (in the court’s second sentence) is the right way to do things.

(link to opinion)