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).

Torts. Concerted action in hunting accident not proved. Knowledge, foreseeability, duty and causation all lacking.

Lussier, Administrator v. Bessette, Lussier and Reed (2010-056) (19-Nov-2010) 2010 VT 104 (Reiber, C.J. ) 

The trial court granted summary judgment in favor of defendants in this wrongful death action.  On appeal, plaintiff argues the trial court erred in holding that defendants were not subject to concerted action liability for their participation in a hunt which culminated in the death of Rejean Lussier.  We affirm.

While on a joint hunt with defendants, Mr. Viens shot Lussier in boredom or poor judgment when  he looked through his scope at a tractor and fired. The pertinent inquiry for the trial court was whether defendants were engaged in concerted activity with Mr. Viens when he shot Mr. Lussier. As adopted by this Court, the Restatement sets out three alternative tests:

A person is subject to liability for harm resulting to a third person from the tortious conduct of another if the person: (1) commits a tortious act as part of a common design with the other; (2) gives substantial assistance to the other knowing that the other’s conduct is a breach of duty; or (3) gives substantial assistance to the other to accomplish a tortious result while also acting in a manner that is a breach of duty to the third person.   

Montgomery v. Devoid, 2006 VT 127, ¶ 33, 181 Vt. 154, 915 A.2d 270 (citing Restatement (Second) of Torts § 876 (1979)) 

At least a minimal knowledge requirement must be met before liability can be imposed on a common design theory. Defendants had no knowledge, nor any reason to suspect, that Mr. Viens was engaging in flagrant hunting violations in breach of his duty to Mr. Lussier.  Because defendants did not know that Mr. Viens was engaged in conduct constituting a breach of his duty to Mr. Lussier, they cannot be found guilty of concerted action liability under the first and second prong. 

 As to the third prong, there was nothing in defendant’s hunting plan—walking through the woods to flush a deer—that would have Mr. Viens’s hunting violations as its natural and probable result.  Neither were defendants’ actions a breach of some separate duty owed to Mr. Lussier.  It is not the duty of those in a hunting party to supervise other members.  Because defendants breached no separate duty to Mr. Lussier and because their actions did not proximately cause his death, they are not liable under this final prong.

Finally, the Restatement cautions that a person who encourages another to commit a tortious act  is ordinarily not liable for  acts of the other done in connection with the intended tortious act that were not foreseeable by him.  Restatement (Second) of Torts § 876, cmt. d (1979). It is generally not foreseeable that another hunter in hunting party will violate hunting safety rules. See, e.g., Kramschuster v. Shawn E., 565 N.W.2d 581 (Wis. 1997). Even assuming defendants’ plan was negligent, it was not foreseeable that as part of this plan that Mr. Viens would engage in the hunting violations that proximately caused Mr. Lussier’s death. Defendants may have  created the risk that someone would be shot when Mr. Viens attempted to shoot a dear in accordance with the group’s hunting plan,  but Mr. Viens was not acting pursuant to the plan when he looked through his scope at the tractor in boredom or poor judgment. 

Because Mr. Lussier’s death was the natural and probable result of Mr. Viens’s conduct, but not of defendants’, defendants cannot be found liable.