Arizona Court of Appeals Division One Holds That Four Defendants Who Hit and Kicked Plaintiffs Who Were Laying Motionless on the Ground Can Be Held Jointly Liable for Injuries Under A.R.S. § 12-2506(D)(1).

When friends Chappell and Romano exited a bar in Tempe, they were confronted by and argued with Wenholz, Bean, and two of their friends.  The argument was broken up by a security guard, but when Chappell and Romano walked away, one man from Wenholz’s group “sucker punched” Chappell, who fell to the ground.  Romano tried to defend Chappell but also got “pummeled” to the ground.  A bartender who saw the fight said that the four men repeatedly punched and kicked Chappell and Romano as they lay motionless on the ground.  (The Court noted that, “[a]s with many encounters ending in fisticuffs, the parties’ respective accounts of events are in conflict.”  The Court viewed the facts in the light most favorable to Chappell and Romano who had a partial summary judgment entered against them.)

Chappell and Romano sued Wenholz, Bean, and their two friends.  One friend never answered the complaint, and the other was never served.  Wenholz filed a motion for partial summary judgment arguing that he was not jointly liable with his friends for Chappell’s and Romano’s injuries.  The trial court granted Wenholz’s motion, finding that there was no evidence that Wenholz and his friends had formed a conscious agreement to commit an intentional tort, which is required for joint liability under A.R.S. § 12-2506(D)(1).  The trial court also concluded that the plaintiffs could not prove which of the defendants inflicted which injuries and therefore dismissed all claims.

The Court of Appeals reversed.  Under A.R.S. § 12-2506(D)(1), an exception to the general rule of several-only liability exists, and defendants can be held jointly liable if two or more parties “were acting in concert.”  Under A.R.S. § 12-2506(F)(1), “acting in concert” requires that two or more people “enter[] into a conscious agreement to pursue a common plan or design to commit an intentional tort . . . .”  The parties agreed that the elements necessary to satisfy § 12-2506(F)(1) were set forth in the Court of Appeals’ earlier opinion Mein ex rel. Mein v. Cook, 219 Ariz. 96, 193 P.3d 790 (App. 2008).  Their disagreement centered on whether the first of the three elements was satisfied in this case, that is, whether there was sufficient evidence to find that Wenholz and his friends “knowingly agreed to commit an intentional tort.”

The Court agreed with Chappell and Romano that evidence that the defendants kicked and punched them while they lay on the ground showed the defendants’ knowing agreement to commit an intentional tort.  The Court noted the Restatement rule that an agreement can be implied by conduct and concluded that a “jury could find that by joining in the fray and then continuing to hit and kick Chappell and Romano while they lay motionless, Wenholz’s group implicitly agreed to inflict injuries on plaintiffs collectively, thereby subjecting them to joint liability for plaintiffs’ injuries.”

Judge Timmer authored the court’s opinion; Judges Kessler and Johnsen concurred.