NO. 89-220
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JEANETTE SLOAN, as conservator of the
Estate of John P. Sloan,
plaintiff and Respondent,
-vs-
RICHARD FAUQUE AND TED ZENZIUS,
Defendants and Appellants.
APPEAL FROM: District Court of the Ninth Judicial ~istrict,
In and for the County of ~ l a c i e r ,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen C. Berg; Warden, Christiansen, Johnson & Berg,
~alispell, Montana
For Respondent:
Stephen D. Roberts, Bozeman, Montana
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Submitted on Briefs: Aug. 24, 1989
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Decided: October 17, 1989
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Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
Richard Fauque and Ted ~enzius, defendants and
appellants, appeal from a partial summary judgment entered in
favor of plaintiff and respondent, Jeanette Sloan, as
conservator of the estate of John P. Sloan, by the District
Court of the Ninth Judicial District, Glacier County. We
affirm and remand for proceedings pending before the District
Court.
The sole question raised on appeal is whether the
District Court properly granted a partial summary judgment
pursuant to Rule 56(a), M.R.civ.P., in favor of respondent on
the issue of liability.
The facts of the case are undisputed. On April 5 , 1987,
~enziusattended a "kegger" party in Shelby, Montana. Among
the guests were Will Newberry, Mark Barnes, and Glen Gorman.
Later that evening, the party moved to the Newberry home in
Cut Bank. ~enzius transported the keg from the Shelby
residence to the Cut Rank residence in his vehicle. The keg
was taken into the Newberry home where it was made available
for consumption. The party-goers proceeded to drink the
contents of the keg.
On that same evening, Fauque, who was walking home from
work, was approached by Barnes, who asked Fauque if he wanted
to drink some beer. Fauque responded in the affirmative and
the pair proceeded to the Newberry residence in the Barnes
vehicle, where Fauque did in fact consume the beverage.
Shortly thereafter, some Shelby kids arrived at the
party and wanted to take the keg. An argument ensued over
the matter between Barnes, Gorman, and the Shelby kids. The
Shelby kids took the keg and left the party in a vehicle
driven by Jeffrey Hodges (the Shelby vehicle) . As the
vehicle departed, Gorman and Barnes yelled and screamed at
the vehicle's occupants.
Gorman returned to the Newberry residence and informed
everyone that the Shelby kids had called them a derogatory
name. He then encouraged the people in the house to go with
him to "beat up" the Shelby kids. Fauque and Zenzius were
present at that time.
Fauque and zenzius voluntarily joined Gorman, Barnes,
and Newberry in Barnes's vehicle to pursue the Shelby
vehicle. Zenzius later stated that he assumed that "we were
going to get in a fight" when the group got into the vehicle
and that the group was the type who would get into such a
fight. Both Fauque and zenzius were aware of the violent
reputation of Gorman.
As Barnes was backing his vehicle out of the driveway,
it became stuck on a fence. Fauque assisted Barnes in
freeing the vehicle by stepping on the fence. ~pproximately
five minutes had lapsed since the departure of the Shelby
vehicle. Both Fauque and ~ e n i u swere aware that the Barnes
vehicle would have to speed to catch up to the Shelby
vehicle. The Barnes vehicle did in fact travel 80-90 miles
per hour on U.S. Highway 2 from Cut Bank to Shelby in pursuit
of the Shelby vehicle.
The Barnes vehicle did catch up with the Shelby vehicle,
at which time the two vehicles passed each other back and
forth. Gorman leaned out the back window of the driver's
side of the Barnes vehicle and yelled at the kids in the
Shelby vehicle. He then leaned out the window and opened the
door of the Shelby vehicle. He also threw a piece of rubber
at the vehicle. At no time did either Fauque nor ~ e n z i u ssay
anything to anyone about slowing down or abandoning the
chase. As a consequence of the chase, a collision occurred
between the two vehicles which resulted in serious and
disabling injuries to John Sloan, a passenger in the Shelby
vehicle.
The sole question raised on appeal is whether the
~istrict Court properly granted a partial summary judgment
pursuant to Rule 56(a), M.R.civ.P., in favor of respondent on
the issue of liability.
A party moving for summary judgment must prove that he
is entitled to summary judgment as a matter of law by
demonstrating an absence of any genuine issue of material
fact. Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637
P.2d 509. As noted, the facts of the case are not in
dispute. The appeal centers around whether Fauque and
Zenzius are liable as tortfeasors acting in concert--a
question of law.
Fauque and Zenzius argue that their involvement in the
action does not constitute a tort since they were not driving
the vehicle involved in the accident but were merely
passengers in the vehicle. The ~istrict Court, however,
found that defendants did indeed act in concert as
tortfeasors as defined in part in Restatement (Second) of
Torts S 876 (1979) as follows:
For harm resulting to a third person from the
tortious conduct of another, one is subject to
liability if he
(b) knows that the other's conduct constitutes a
breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself.
While the issue raised is one of first impression in
Montana, several other jurisdictions have determined that
where two or more persons commit tortious acts in concert,
all are liable for the tortious acts of anyone. Huckeby v.
Spangler (Tenn. 1975), 521 S.W.2d 568. See also Herman v-.
Westgate (N.Y. App. D ~ V .1983), 94 A.D.2d 938, 464 N.Y.S.2d
315 (equal liability found where defendant participated in
the concerted activity of throwing stag party guests from a
barge) ; ~rnericanFamily Mutual Ins. Co. v. Grim (Kan. 1968),
440 P.2d 621 (joint and several liability found where
defendant aided, abetted, and encouraged breaking into a
church at night to steal sodas and, unknown to the defendant,
his two friends lit torches to light the darkened church,
which subsequently caused a fire therein).
Defendants argue that because they were not in control
of the Barnes vehicle and did not make any encouraging
statements to the driver, they should not be held liable for
the resulting accident. We disagree. In Schiller v.
Strangis (D. Mass. 1982), 540 F.Supp. 605, the court held
that where the defendant knowingly joined in committing a
tort and by his silence encouraged the tort, he was liable.
The same holds true in the present case. Fauque and Zenzius
voluntarily joined the group in the Barnes vehicle. They
knew the vehicle would have to speed to catch up with the
Shelby vehicle. They also knew that the purpose of the chase
was to eventually assault the occupants of the vehicle. The
silence of the defendants during the chase does not negate
their involvement nor excuse their liability.
Further, Fauque and Zenzius acted affirmatively in the
joint tortious plan to chase after the Shelby vehicle and
assault its occupants. Both men responded to Gorman's
statement that they should "beat up" the Shelby kids by
voluntarily joining the group in the Barnes vehicle for the
common purpose of committing an intended assault; Fauque
substantially assisted in freeing the Barnes vehicle from a
fence in order for the chase to commence; and both defendants
remained silent during the chase and did not make any demands
of abandoning the chase nor slowing the vehicle to anyone
therein. Fauque and ~ e n z i u sencouraged Barnes's actions and
gave him substantial assistance, thus, acting in concert with
the occupants of the Barnes vehicle and are subject to
liability. Summary judgment was proper.
Affirmed and remanded for proceedings pending before the
/
~ i s t r i c tCourt.
We Concur: