Lindsay v. Lockwood

• Decision Date: 27 October 1994
• Citation: 163 Misc.2d 228,625 N.Y.S.2d 393
• Parties: Cathleen LINDSAY, Plaintiff, v. Ronald LOCKWOOD et al., Defendants.
• Court: New York Supreme Court

Page 393

625 N.Y.S.2d 393

163 Misc.2d 228

Cathleen LINDSAY, Plaintiff, v. Ronald LOCKWOOD et al., Defendants.

Supreme Court, Monroe County.

Oct. 27, 1994.

Osborn, Reed, Burke & Tobin, Rochester (Paul M. Riordan, of counsel), for Ronald Lockwood, defendant.

Connors & Corcoran, Rochester (Patrick E. Tydings, of counsel), for Jeff Matthews, defendant.

Saperston & Day, P.C., Rochester (Gregory G. Broikos, of counsel), for Brian Zugehoer, defendant. ¹

Phillips, Lytle, Hitchcock, Blaine & Huber, Rochester (Bradley P. Kammholz, of counsel), for plaintiff.

ANDREW V. SIRACUSE, Justice.

Plaintiff Cathleen Lindsay was injured during a brief altercation at her apartment at or following a party she held on the night of January 31, 1992. She sued Ronald Lockwood, who was tried and acquitted of assault in connection with the incident, and three friends of Lockwood's who had come with him to the apartment, alleging in her original complaint that all four "negligently and recklessly engage[d] in [a] concerted course of conduct and[/]or joint venture". Although the plaintiff apparently identified defendant Lockwood as her assailant at the criminal trial, she has not asserted any such claim in the present action, and has not identified him as such in her pleadings, bills of particulars, or testimony at deposition.

Defendants Lockwood and Matthews have now moved to dismiss the complaint as against them, and the plaintiff has cross-moved to amend her complaint to add the specific allegations contained in her bills of particulars: that the defendants, inter alia, agreed to pursue an individual who had been at the party, organized so as to harass, intimidate, menace, and assault her and others; agreed to trespass and engage in conduct that recklessly created a risk of fighting or tumultuous conduct and in group fighting; encouraged Lockwood, known by them to have a propensity to violence; and aided or encouraged other defendants in all of the above. All of these acts are described as negligent rather than intentional conduct, and the proposed amendments thus do not add any cause of action to the single one pleaded in the original complaint.

This complaint, which may generously be described as unorthodox, substantially blurs the lines between intentional and negligent torts, as well as the distinctions drawn between different forms of concerted action liability. Some consideration of the facts will serve to clarify the issues actually at stake. As the summary judgment motion is brought by the defendants, the evidentiary material submitted will be construed in the plaintiff's favor.

A short time--about 45 minutes--before the incident there was a fight at the party, and one Ronald Hughes was hit by Steven Livesy, known as "Beaker". Hughes and his friend Ron Bentley left the party, and Hughes called the pager number of his friend Jeff Matthews.

Matthews was with several friends, the other defendants, at Perkins Restaurant. He returned Hughes's page and then told the others that there was a party in progress near Monroe Community College, and that they were to meet Hughes and Bentley at the College parking lot. Matthews also told the others that Hughes had been hit in the face by Beaker.

The exact extent of the discussion among the defendants is unclear, although they certainly all knew of the earlier fight, and it is hard to avoid the conclusion that a confrontation with Beaker was one if not the sole reason for the defendants' going to the party. Bentley, who was not sued, provides the most colorful account of the meeting at the parking lot; he recalls that the others were angry and said, "Let's go back to the party and see how tough this one kid is that decides to hit Randy, who didn't do anything", someone said, "I'm going to kill this guy" and Randy was "like, 'I just want him dead.' " ² While the defendants insist that their main interests were the beer and women they expected to find at the party, Matthews and Lockwood did admit that they discussed finding Beaker and determining what "his problem was".

Counting the defendants, Hughes and Bentley, eight or nine people drove from the parking lot to the plaintiff's party. It was now 12:30 A.M. and the party was winding down. Hughes entered and made a scene, jumping up and down and asking for Beaker, who was no longer there. Lockwood ended up wrestling on the floor with someone else never identified. Defendant Jason O'Connell testified that he was unable to enter the apartment because of the press of people, and left. Codefendant Brian Zugehoer testified that someone hit him, unprovoked, on the side of the head and he grabbed his assailant's wrists and held him in place. Matthews saw Lockwood wrestling and tried to separate the two. He saw no other fighting. Lockwood admitted wrestling with the unnamed person and stated that he responded to Matthews's requests and began to leave the apartment. He was on his way out when two women attacked him; in the struggle he may have hit the plaintiff.

The plaintiff's account is not altogether different, primarily because she was in her bedroom when the defendants entered and did not go out until she heard the sounds of a fight. She saw from five to seven men she did not know; a friend of hers was fighting with one or two of them. She went up to one of the fighters and told him to leave. He pushed her. She repeated her demand, and he punched her.

The group left and the police were called. The plaintiff later identified her assailant as Ron Lockwood, an identification to which she alludes only indirectly in her deposition.

The plaintiff, as noted above, claims that the defendants negligently engaged in a course of action that created a risk of injury, and that she was injured thereby. Negligence, however, is an odd label for this action. The defendants' conduct could plausibly be depicted as intentional and directed towards a tortious end: an assault if not a battery upon Beaker. This purpose can hardly be considered negligent. The only other possible interpretation of the plaintiff's claim is that the defendants conducted themselves negligently while carrying out a scheme to confront Beaker. This, too, is difficult to understand; to find joint (as opposed to individual) responsibility for the negligent carrying out of some concerted plan one would have to find that the defendants agreed as to means as well as to ends. It is easy to see circumstances which would support an intentional conduct claim--if, for example, the plaintiff could show an agreement to menace the partygoers in order to find out where Beaker was hiding; but there can hardly be a conspiracy to commit negligence.

An argument that the defendants negligently (rather than intentionally) created a risk of fighting is tantamount to saying that their mere presence at the party constituted negligence, and this, in fact, appears to be the plaintiff's argument: that fighting at the party was a foreseeable result of the defendants' plan to confront Beaker. This argument may be appealing on the surface, but it fails in the absence of an overt act by one or more of the defendants at the party itself. The circumstances of Lockwood's fight are totally obscure, and there is simply no evidence here that the other defendants menaced, threatened or harassed anyone at the party. Moreover, the record shows no sign that any partygoer other than Beaker was ill disposed towards Hughes and his friends, or that any of the defendants anticipated or should have anticipated hostility on the part of those at the party. However it may be disguised, the real issue here is intentional rather than negligent conduct.

Restatement (Second) of Torts § 876 outlines three bases for liability for persons acting in concert, two of which are relevant here:

"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."

These two theories correspond respectively to conspiracy and aiding and abetting (see generally, Halberstam v. Welch, 705 F.2d 472, 476-486 [DC Cir 1983]. They shall be treated in reverse order in what follows.

The elements of aiding and abetting are (1) a wrongful act producing an injury, (2) the defendant's awareness of a role "as part of an overall illegal or tortious activity at the time he provides the assistance; [and] (3) the defendant['s] * * * knowing[ ] and substantial[ ] assist[ance in] the principal violation" (Halberstam v. Welch, supra, 705 F.2d, at 477). The archetypal aiding and abetting defendant is one who encourages another to commit a tortious act (see, e.g., Rael v. Cadena, 93 N.M. 684, 604 P.2d 822 [defendant told assailant to "hit" and "kill" plaintiff]; Restatement [Second] of Torts § 876, comment d, illustrations 4, 5). One who commits a negligent act in common with another is also liable, as, for example, the members of a hunting party who all negligently shoot across a public road (id., illustration 6).

These elements are clearly found in the one New York case most relied upon by the plaintiff, where a crowd at a stag party engaged in throwing others off a boat, resulting in injury; the Fourth Department held, "Liability of an individual defendant will not depend upon whether he actually propelled plaintiff into the water; participation in the concerted activity is equivalent to participation in the [act] resulting in the injury" (Herman...