Elements of Nevada's Theories of Liability

Concert of Action

Concert of Action

Elements

[L]iability attaches for concert of action if two persons commit a tort while acting in concert with one another or pursuant to a common design.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 111 (1998)

Example Cases

The tort of concert of action has traditionally been quite narrow in the scope of its application. The classic application of concert of action is drag racing, where one driver is the cause-in-fact of plaintiffs injury and the fellow racer is also held liable for the injury. Santiago v. Sherwin-Williams Co., 794 F.Supp. 29, 31 (D.Mass. 1992), aff’d, 23 F.3d 546 (1st Cir.1993).
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 111 (1998).

Proof

  • Difference between civil conspiracy and Section 876 concert of action

Civil conspiracy in Nevada differs from concert of action as defined in Section 876 in that civil conspiracy requires that the defendants have an intent to accomplish an unlawful objective for the purpose of harming another, while concert of action merely requires that the defendants commit a tort while acting in concert.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 111 (1998).

Similarly, when section 876 refers to acting in concert with another tortfeasor or pursuant to a common design, it refers to this concept of agreement. Proof of an agreement alone is not sufficient, however, because it is essential that the conduct of each tortfeasor be in itself tortious.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 112 (1998) (citing Restatement (Second) Torts Section 876(a), cmts. a, b, c; Halberstam, 705 F.2d at 477).

Damages

Defenses

Misc

Similarly, one court remarked that application of the doctrine of concert of action “is largely confined to isolated acts of adolescents in rural society,” Halberstam, 705 F.2d at 489, and another court observed that this theory is meant to “deter antisocial or dangerous behavior.” Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996).
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 111 (1998).

To the extent that our holding in Mahlum suggests that concert of action requires no more than an agreement along with tortious conduct, it is disfavored. To be jointly and severally liable under NRS 41.141(5)(d)’s concert of action exception, the defendants must have agreed to engage in conduct that is inherently dangerous or poses a substantial risk of harm to others. Thus, this requirement is met when the defendants agree to engage in an inherently dangerous activity, with a known risk of harm, that could lead to the commission of a tort. Mere joint negligence, or an agreement to act jointly, does not suffice; such a construction of NRS 41.141(5)(d) would render meaningless the general rule of several liability.

GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001).