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WPI 50.20 Acting in Concert—RCW 4.22.070—Definition

6 WAPRAC WPI 50.20Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 50.20 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Agency and Partnership—Torts
Chapter 50. Agency and Partnership—Torts
WPI 50.20 Acting in Concert—RCW 4.22.070—Definition
Two or more people act in concert if they consciously act together in an unlawful manner. It is not necessary that they intend to harm the plaintiff.
NOTE ON USE
Use this instruction if there is an issue under RCW 4.22.070(1)(a) whether a defendant was acting in concert with another party or person.
Use this instruction with WPI 50.21 (Acting in Concert—RCW 4.22.070—Liability).
COMMENT
RCW 4.22.070(1)(a).
Background. The statute provides in part that the liability of multiple defendants shall be several only, except that a “party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party.”
Although RCW 4.22.070 does not define “acting in concert,” the Washington Supreme Court held that the Legislature intended the term to require two or more people consciously acting together in an unlawful manner. Kottler v. State, 136 Wn.2d 437, 448–49, 963 P.2d 834 (1998) (incorporating the analysis in Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 75 Wn.App. 480, 487, 878 P.2d 1246 (1994), reversed on other grounds, 128 Wn.2d 745, 762 n.8, 912 P.2d 472 (1996)).
This narrow definition replaces the broader definition that the common law had gradually developed prior to the passage of the Tort Reform Act. Gilbert H. Moen Co., 75 Wn.App. at 486–88. However, the narrow definition adopted in Kottler does not necessarily apply to all claims of concerted action arising under the common law. See Martin v. Abbott Lab'ys, 102 Wn.2d 581, 596–99, 689 P.2d 368 (1984) (generally discussing the common law theory of concerted action).
The narrow definition excludes mere concurrent tortfeasors by requiring that the actors consciously combined their actions; it excludes mere co-conspirators by requiring that each of the actors actively participated in the unlawful conduct. See Gilbert H. Moen Co., 75 Wn.App. at 486.
Although all tortfeasors must actively engage in the conduct, there is no requirement that they intend to harm the plaintiff. Gilbert H. Moen Co., 75 Wn.App. at 487; Yong Tao v. Heng Bin Li, 140 Wn.App. 825, 832, 166 P.3d 1263 (2007).
Terms not yet defined. The courts have not yet defined the key terms “consciously” and “unlawful manner” in the context of this instruction. The only guidance for practitioners is the court's comment in Gilbert H. Moen Co. that the word “consciously” is not limited to intentional conduct:
Moen objects that [the narrow definition] would restrict acting in concert to intentional torts, which are already not included in proportional fault. This is not an accurate [analysis of the narrow definition]. Action in concert requires only that the actors consciously act together in an unlawful manner. It does not require that they intend to harm the plaintiff. Sisk cites “highway drag-racing in which an innocent bystander is injured” as an example.
Gilbert H. Moen Co., 75 Wn.App. at 487 (quoting Sisk, Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform, 16 U.Puget Sound L.Rev. 1, 108 (1992)).
For additional discussion of “acting in concert,” see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice § 13.11 (5th ed.).
[Current as of November 2021.]
End of Document