Intentional Tort In Concert and Joint and Several Liability

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Intentional Tort In Concert and Joint and Several Liability

Chappell v. Wenholz, 601 Ariz. Adv. Rep. 6 (App., Div. I, February 8, 2011)(J. Timmer)


Plaintiffs went to the bar at their hotel and as they left got into an argument with the four defendants. The argument escalated into a physical assault by the defendants upon the plaintiffs who were struck with fists and kicks until beaten unconscious by the four defendants. Plaintiffs sued for the intentional tort of assault and battery and alleged the defendants were acting "in concert" under ARS sec. 12-2506(D)(1)&(F)(1) and therefore were jointly and severely liable for their acts. The trial court disagreed and granted defendant's motion for summary judgment. Plaintiffs appealed and the Arizona Court of Appeals reversed.

The court of appeals found that in order to be acting in concert as defined by the statute the defendants needed to have "knowingly agreed to commit an intentional tort that they were certain or substantially certain would result in the consequences complained of, and actively participated in commission of the tort." Here the central issue was whether or not the defendants had "formed a conscious agreement to commit the intentional tort." The court noted that the agreement need not be verbally expressed and may be implied from the conduct. Hence all the defendants would not be responsible for the first punch but after that punch a jury could reasonably infer that the fact they all joined together to punch and kick the plaintiffs constituted an implied agreement to commit the tort. There need not be an exclamation, "Lets get 'em" or any verbal pronouncement to establish the agreement.

Tort- Battery

Battery is the tort of purposely and willingly inflicting contact to another person or their closely related property without their consent. Because battery is a common law, meaning there is a single tort of battery, and therefore punishments may vary in court depending on the damages and severity of the incident.
Battery is not the same as assault. Assault does not require physical contact, whereas by definition, battery does. Further, no actual damage needs to be proved because this tort is assessed based on proof on contact solely. Battery is instead measured based on whether or not the contact is offensive or harmful to the reasonable person.

Further, for battery to take place, the victim does not have to be aware of the incident at the time the tort happens. A person can be a victim a battery even if the defendant is out of the scene or the plaintiff did not know battery occurred until well after the incident. The degree of intent is also essential to take into consideration when evaluating battery. If a person has the intent to perform an action but not to impose contact, and does, there are still sufficient grounds that a battery occurred. Battery can arise in a variety of different ways and it is important to understand how it can take place.

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