Elardo, Bragg, Appel & Rossi

Acting in Concert

Chappell v. Wenholz, 226 Ariz. 309, 247 P.3d 192 (App. Div. 1 2011)

After the trial court found that plaintiff could not prove which defendant had inflicted which injuries during a fight in a hotel parking lot and dismissed all claims, the Arizona Court of Appeals held there was sufficient evidence to find the defendants had been “acting in concert,” i.e., “entering into a conscious agreement to pursue a common plan to commit an intentional tort,” and were jointly liable. The Court noted that a “conscious agreement” does not require verbal expression and may be implied from conduct itself, such as where defendants joined in the fight in full sight of each other, thereby implicitly agreeing to inflict injuries on plaintiffs collectively.