## Facts

- Derby Methodist Church suffered a destructive fire on August 16, 1965.
- American Family Mutual Insurance Company insured the church, paid the covered fire loss, and sued as subrogee to recover part of what it paid.
- Kirk Preston Grim, age 13, spent the night with three boys of similar age; they walked to get soft drinks.
- As they passed the church, the boys decided to enter and try to obtain soft drinks believed to be in a kitchen refrigerator.
- The boys entered through an unlocked front door and attempted to reach the kitchen; the kitchen doors were locked.
- Three boys climbed into the attic through a trap door; Grim stayed in a storeroom behind the stage while the others proceeded.
- In the attic, the boys used an electric light and also made paper torches by lighting rolled paper to see while moving about.
- The boys left without obtaining drinks; later, embers from the burning paper ignited a fire that burned the church.
- In a bench trial, the court found Grim liable as a participant in the group wrongdoing and entered judgment for the insurer (including a $25,000 award); Grim appealed, arguing insufficient evidence and lack of personal participation in the attic fire-making.

## Issues

1. Whether the evidence supported holding Grim liable for the fire damage despite his claim that he neither entered the attic nor lit the paper torches.
2. Whether a participant in a common wrongful enterprise may be liable for reasonably foreseeable acts of co-participants committed in furtherance of that enterprise, absent withdrawal.

## Decision

- The Kansas Supreme Court affirmed the judgment for the insurer.
- The court held Grim could be treated as a joint tortfeasor because he participated in the unlawful entry and attempted taking of property and did not withdraw.
- The negligent use of fire by his companions in the attic was a foreseeable incident of carrying out the group’s plan and did not break the chain of responsibility.
- The insurer was entitled, as subrogee, to recover from those responsible for the loss.

## Legal Principles

- A person who participates in or encourages a tortious enterprise may be liable for the foreseeable acts of others acting in concert to accomplish the shared objective.
- Remaining with the group and continuing participation, without objection or departure, supports a finding of no withdrawal from the common plan.
- Foreseeability limits the scope of concerted-action liability; negligent means used to further the plan may be attributed to all participants when reasonably anticipated.
- After paying a covered loss, an insurer may sue in subrogation and assert the insured’s rights against responsible tortfeasors.

## Conclusion

The court imposed joint liability on a minor who joined and remained part of an unlawful entry and attempted theft, ruling that the ensuing church fire was a foreseeable consequence of the group’s conduct, and it allowed the insurer to recover by subrogation.


Am. Fam. Mut. Ins. Co. v. Grim, 440 P.2d 621 (Kan. 1968)