Restatement (Second) of Torts

Current through August 2010

Copyright © 1979-2010 by the American Law Institute

Division 11. Miscellaneous Rules

Chapter 44. Contributing Tortfeasors

§ 875. Contributing Tortfeasors—General Rule

Each of two or more persons whose tortious conduct is a legal cause of a single and
indivisible harm to the injured party is subject to liability to the injured party for the
entire harm.

Comment:
a. The rule stated in this Section, as well as the rules stated in §§ 876 and 879, which are specific
applications of the rule here stated, includes only situations in which the defendant has been
personally guilty of tortious conduct. It does not include a statement of the liability of a master or
other principal for the tort of his servant or agent. For this liability, see Restatement, Second,
Agency, §§ 219-267 and 473-528. Nor does it include the liabilities of persons engaged in a joint
enterprise for profit for the conduct of each other or of employees, as far as their liability is based
upon principles of partnership or agency.

§ 876. Persons Acting In Concert

Link to Case Citations

For harm resulting to a third person from the tortious conduct of another, one is subject to
liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(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, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own
conduct, separately considered, constitutes a breach of duty to the third person.

Caveat:
The Institute takes no position on whether the rules stated in this Section are applicable when the
conduct of either the actor or the other is free from intent to do harm or negligence but involves
strict liability for the resulting harm.

Comment on Clause (a):

a. Parties are acting in concert when they act in accordance with an agreement to cooperate in a
particular line of conduct or to accomplish a particular result. The agreement need not be
expressed in words and may be implied and understood to exist from the conduct itself.
Whenever two or more persons commit tortious acts in concert, each becomes subject to liability
for the acts of the others, as well as for his own acts. The theory of the early common law was
that there was a mutual agency of each to act for the others, which made all liable for the tortious
acts of any one.

§ 876. Persons Acting In Concert

For harm resulting to a third person from the tortious conduct of another, one is subject to
liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him,
or
(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, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own
conduct, separately considered, constitutes a breach of duty to the third person.

Caveat:
The Institute takes no position on whether the rules stated in this Section are applicable when the
conduct of either the actor or the other is free from intent to do harm or negligence but involves
strict liability for the resulting harm.

Comment on Clause (a):

a. Parties are acting in concert when they act in accordance with an agreement to cooperate in a
particular line of conduct or to accomplish a particular result. The agreement need not be
expressed in words and may be implied and understood to exist from the conduct itself.
Whenever two or more persons commit tortious acts in concert, each becomes subject to liability
for the acts of the others, as well as for his own acts. The theory of the early common law was
that there was a mutual agency of each to act for the others, which made all liable for the tortious
acts of any one.

Illustrations:
1. A, B, C and D come together to E's house at night to rob. A breaks in E's front door, B ties E
up, C beats E and D steals and carries away E's jewelry. A, B, C and D are all subject to liability
to E for all damages caused by the trespass to land, the false imprisonment, the battery and the
conversion.
2. A and B are driving automobiles on the public highway. A attempts to pass B. B speeds up his
car to prevent A from passing. A continues in his attempt and the result is a race for a mile down
the highway, with the two cars abreast and both travelling at dangerous speed. At the end of the
mile, A's car collides with a car driven by C and C suffers harm. Both A and B are subject to
liability to C.

b. The same rule is applicable, in general, to tortious acts done pursuant to a common design or
plan for cooperation in a tortious line of conduct or to accomplish a tortious end. It is in
connection with these common designs or plans that the word “conspiracy” is often used. The
mere common plan, design or even express agreement is not enough for liability in itself, and
there must be acts of a tortious character in carrying it into execution. When both parties engage
in the acts, each becomes subject to liability for the cars of the other.
c. In order for the rule stated in Clause (a) to be applicable, it is essential that the conduct of
the actor be in itself tortious. One who innocently, rightfully and carefully does an act that has
the effect of furthering the tortious conduct or cooperating in the tortious design of another is not
for that reason subject to liability.