Torts. Concerted action liability. Teenager who was present and partying with others is liable for their negligent conduct causing a fire.

Concord General Mutual Insurance Co. v. Gritman, 2016 Vt. 46 (filed April 22, 2016)

ROBINSON, J. Defendant Dylan Stinson appeals from a judgment finding him liable to plaintiffs for damage to their vacation home from a fire started in an outdoor fireplace on their deck by a group of teenagers who were there without their permission. Stinson contends that there was insufficient evidence to find him liable for the damage under a concerted-action theory. We affirm.

On May 26, 2009, a group of teenagers gathered at a vacation house owned by the plaintiffs. As the night progressed, it became chilly and the teens decided to build a fire. Stinson was present on the deck partying with the group while the fire was burning. Around 9:46 p.m., Stinson left the property. Nobody added additional wood or fuel to the fire after Stinson left. At 4:09 a.m., a fire was discovered at the property. The fire burned the house to the ground.

Stinson argues first there was insufficient evidence that he knew of any negligent conduct that could cause the house to catch fire. Second, even if he did know of any negligent conduct, he argues he did not give substantial assistance or encouragement in building the fire.

We have adopted the definition of concerted action lability as stated in the Restatement (Second) of Torts § 876 (1979). This section provides, in part, that a person is subject to liability for harm to a third person from the tortious conduct of another if the person “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 herself].” Restatement (Second) of Torts § 876 (b). See Lussier v. Bessette, 2010 VT 104, ¶¶ 7-11, 189 Vt. 95, 16 A.3d 580; Montgomery v. Devoid, 2006 VT127, ¶ 33, 181 Vt. 154, 915 A.2d 270. This theory of liability requires both knowledge that another's conduct constitutes a breach of duty, and substantial assistance or encouragement to the other.

We conclude that there was ample evidence to support the jury's inference that Stinson knew of a negligent act. A jury could find from the evidence that Stinson not only sat by the fire throughout the evening, but was present during the times when it was burning too hot. Moreover, there is no evidence that Stinson took any steps ensure that his peers would fully extinguish the fire before they left. This evidence supports the inference that Stinson knew, or had reason to suspect, that one or more of his peers was or would be negligent in managing and extinguishing the fire.

Similarly, there was ample evidence that Stinson gave substantial assistance or encouragement to his peers.  To determine whether a defendant's conduct rises to the level of substantial assistance or encouragement, the Restatement calls for consideration of five factors: (1) the nature of the wrongful act; (2) the kind and amount of the assistance; (3) the relationship between the defendant and the actor; (4) the presence or absence of the defendant at the occurrence of the wrongful act; and (5) the defendant's state of mind. Restatement (Second) of Torts § 876 cmt. d.

The jury could have reasonably inferred from the facts that the teenagers built, maintained, and ultimately left the fire while they were substantially impaired, and that Stinson was as much a part of this group endeavor as any other. Stinson was one of five youths present on the deck for most of the evening, having left only fifteen minutes prior to the other teens. He participated in the gathering as much as anyone, was present when the fire was so hot that the youths could not sit right next to it, and left while the fire was still burning. Based on these facts, the jury had sufficient evidence to support a finding that Stinson substantially assisted or encouraged the activities of his peers, including building a too-hot fire and leaving without fully extinguishing it.


SKOGLUND, J., dissenting. No evidence demonstrated that Stinson substantially assisted or encouraged others' tortious conduct. Accordingly, I respectfully dissent.

The only evidence upon which the jury could have concluded that Stinson acted in concert with a negligent act was testimony indicating that he was present and participating in the party on the deck when the fire was burning and/or that he said nothing to the people remaining when he left to ensure that they extinguished the fire properly. The majority appears to presume that the negligent act was the manner in which the fire was made and maintained. But there was no evidence that Stinson had anything to do with starting or maintaining the fire. Further the evidence indicated that, by the time the youths left, there were, at most, just smoldering coals left. Hence, the size of the fire or flames was not the cause of the house fire. Logic and the responses to the special verdict form strongly suggest that the jurors considered the negligent act to be not extinguishing the fire properly.

The question, then, is whether Stinson substantially encouraged or assisted in the negligent act that caused the fire, so as to be liable under § 876(b), by being present on the deck while the fire was burning and/or by failing to tell those remaining when he left to extinguish the fire before they left. In my view, this evidence fails, as a matter of law, to establish Stinson's in-concert liability. 

The Restatement cautions that "the encouragement or assistance" must be "a substantial factor in causing the resulting tort." Restatement (Second) of Torts § 876 cmt. d (1979). There is no evidence to suggest that any comment by Stinson warning the others to make sure that the fire was extinguished properly before they left would have made any difference as far as their efforts to douse it. Failing to advise the others before he left to make sure the fire was extinguished properly, in my view, is conduct too attenuated as a matter of law to impose liability on him under § 876(b).