Mein v. Cook – 4/24/2008

April 29, 2008

Arizona Court of Appeals Division One Holds That The Act Of Drag Racing Does Not Automatically Constitute An Intentional Tort For Purposes Of “Acting In Concert” And Joint Liability Under A.R.S. § 12-2506(D)(1).

After a night of drinking, three co-workers became involved in a drag race.  Defendants Glasner and Cook each drove, while Plaintiff Mein was a passenger in Cook’s vehicle.  The vehicles weaved in and out of traffic at nearly 80 m.p.h. until Cook lost control of his vehicle and crashed, severely injuring Plaintiff.  Plaintiff brought suit for negligence against Defendants, claiming the men were jointly liable under A.R.S. § 12-2506(D)(1) because they were “acting in concert.”  Plaintiff moved for summary judgment on the issue of joint liability and Defendant Glassner filed a cross-motion for summary judgment regarding the same issue.   The trial court granted summary judgment for the Defendants, finding the drivers were not acting in concert within the meaning of A.R.S. § 12-2506(D)(1) because they did not commit an intentional tort.  Following a trial on the remaining issues, the jury awarded Plaintiff $3,500,000 and apportioned 70% of the fault to Cook, 5% to Glassner, and 25% to Plaintiff.   Plaintiff appealed.

The Arizona Appeals Court affirmed the trial court’s entry of summary judgment for the Defendants, holding that because Defendants’ drag racing did not constitute an intentional tort, they were not acting in concert within the meaning of A.R.S. § 12-2506(D)(1) and therefore could not be held jointly liable for Plaintiff’s injuries.  Pursuant to A.R.S. § 12-2506(F)(1), “acting in concert” requires a conscious agreement to commit an intentional tort.  An act will only qualify as an intentional tort if the actor desired to cause the consequences that resulted, or was substantially certain that they would result from his or her actions.  

Accordingly, the Court reasoned, because Plaintiff did not show that Glassner and Cook consciously agreed to commit an intentional tort or that they were substantially certain that serious injury would result from their action, they did not commit an intentional tort.  The Court acknowledged that drag racing after a night of drinking could “constitute gross negligence, recklessness, or even wanton misconduct,” but explained that it did not rise to the level of an intentional tort.

Turing to Plaintiff’s second argument, that the trial court abused its discretion by denying Plaintiff’s motion to amend its complaint to allege Glassner’s vicarious liability for Cook’s negligence based on aiding and abetting, joint venture, and civil conspiracy, the Court addressed the issue in a separate memorandum decision where it held that no abuse of discretion occurred.                 

Judge Gemmill authored the opinion, Judges Brown and Orozco concurred.