(dissenting) — If the decision of the majority is allowed to prevail, it would lend credence to the statement of Mr. Clift's counsel during oral argument:
Some years ago when I was in law school we were studying cases like this and the professor called upon one of my classmates and he said, "what have you learned from all of this?" He said, "well, if you're going to commit *612your torts, you'd better do it in groups." I would like to think that was not a correct answer.
Particularly under these circumstances the plaintiff, Mr. Clift, should have his day in court — that is, a day where the credibility of all defendants can be evaluated by the trier of fact.
Mr. Clift initiated this suit for damages alleging assault and battery. An individual commits an assault and battery and is subject to civil liability therefor if he (a) directly perpetrates the act charged, or (b) by any means encourages or incites that act or aids and abets it.2 The seriousness of Mr. Clift's injury is not disputed. With the aid of a private investigator, he named as defendants those members of the group who participated in this act of mob violence. But, because neither Mr. Clift nor the other police officer could articulate the group's precise threats or the identity of the person who kicked Mr. Clift from behind, the court granted summary judgment in favor of these defendants.
Because he was struck from behind, on the back of the head, Mr. Clift cannot identify his assailant. The members of this mob were not all known to the officer. The defendants, on the other hand, are in the best position to identify the culprit. As might be expected, on their motion for summary judgment, all of these defendants denied having seen anyone strike the plaintiff in any way that could be expected to result in an injury, yet none of them deny their presence at the scene. A reasonable inference from the facts establishes their active involvement in the affray.
*613It was an injustice to determine the merits of the plaintiffs case on the basis of a summary judgment. Where the material facts are particularly within the knowledge of the moving party, the cause should proceed to trial so the opponent may be given an opportunity to disprove the position of the moving party by cross-examination. The trier of fact, and not this court on the basis of a cold record, would then have had an opportunity to observe the demeanor of the witnesses while testifying.3
In fact, had this case proceeded to trial, Restatement (Second) of Torts § 433B(3) (1965) is particularly appropriate. Mr. Clift, having presented evidence that he was injured by a member of a hostile and threatening crowd of which the defendants were all members, would then have the benefit of section 433B(3), which provides:
Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
Generally, the plaintiff has the burden of proving a defendant's tortious conduct caused the harm. Restatement (Second) of Torts § 433B(1) (1965). The above principle marks an exception to this rule in view of:
the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.
Restatement (Second) of Torts, Comment on subsection 433B(3) at 446 (1965).
The evidence presented by way of deposition placed each of the defendants within close proximity to Mr. Clift as he *614was attempting to effect a lawful arrest. Mr. Clift and Officer McCray described the mood of the crowd as hostile and riotous. Threats from the loud and angry mob such as, "Kill the S.O.B." and "Kill the Pig" naturally caused the plaintiff to fear for his physical safety. Officer McCray said no member of the crowd was passive — so by inference the members of the crowd were actively involved in the struggle or yelling and shouting at the police. Mr. Van Tine, Mr. Riebold and Mr. Willard Bauscher admit yelling at Mr. Clift. Mr. McSweeney states he was silent, but Officer McCray denied Mr. McSweeney was a passive member of the group. Construing the evidence most favorably to the plaintiff as the nonmoving party, this evidence was sufficient to survive a summary judgment dismissal. The evidence outlined above shows the defendants, by their conduct and words, tortiously incited, encouraged, aided and abetted in the commission of a battery. Moreover, the evidence gives rise to the reasonable inference that one or more of these defendants was the person who committed the battery.
The issue here is the plaintiff's right to his day in court— not, as the majority contends, "a judgment against an innocent defendant" "based upon conjecture and speculation." Any judgment against the defendants would be the result of a determination by the trier of fact, by a preponderance of the evidence, that one or more of the defendants proximately caused the plaintiffs permanent injury.
I respectfully dissent.
Reconsideration denied April 4,1980.
Review denied by Supreme Court June 20,1980.
Thompson v. Johnson, 180 F.2d 431, 433 (5th Cir. 1950); Ramirez v. Chavez, 71 Ariz. 239, 226 P.2d 143, 146 (1951); Hargis v. Horrine, 230 Ark. 502, 323 S.W.2d 917, 919, 72 A.L.R.2d 1223 (1959); Mock v. Polley, 116 Ind. App. 580, 66 N.E.2d 78, 81-82 (1946); Brink v. Purnell, 162 Mich. 147, 127 N.W. 322, 323 (1910); Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132, 136 (1964); Pike v. Eubank, 197 Va. 692, 90 S.E.2d 821, 826 (1956); 3 J. Dooley, Modern Tort Law: Liability and Litigation § 43.09 (1977). See also Smith v. Drew, 175 Wash. 11, 17, 26 P.2d 1040 (1933).
Subin v. Goldsmith, 224 F.2d 753, 758-59, (2d Cir. 1955); United States v. Logan Co., 147 F. Supp. 330, 333 (W.D. Pa. 1957); Felsman v. Kessler, 2 Wn. App. 493, 496-97, 468 P.2d 691 (1970).