## Facts

- A bachelor party was held on a barge owned by Donald Westgate and Thomas Rouse and anchored near shore in shallow water.
- During the party, guests began throwing other guests off the bow into the water as part of a recurring group activity.
- Robert Herman was escorted to the bow by two or more individuals and thrown into the water.
- Herman struck the shallow bottom, suffering a serious spinal cord injury.
- Herman alleged he was thrown against his will and that multiple defendants participated in a shared practice or “game” of throwing guests overboard.
- Herman sued the barge owners and several guests, including John and James Hauck, asserting concerted-action liability even if a defendant did not personally push him.

## Issues

1. Whether defendants who did not personally throw Herman overboard may be held liable under a concerted-action theory based on participation in, encouragement of, or cooperation with the group activity that led to the injury.
2. Whether the record presented triable issues of fact requiring denial of dismissal/summary judgment for individual defendants accused of acting in concert.

## Decision

- The Appellate Division reversed the orders granting dismissal and summary judgment to John and James Hauck.
- The court reinstated the claims (and related cross-claims) against those defendants.
- The court held that summary judgment was improper because a factfinder could determine that defendants acted in concert in a jointly undertaken tortious activity.

## Legal Principles

- Under concerted-action liability, a defendant may be liable for harm caused by others when the defendant participated in, encouraged, or cooperated in a joint tortious activity.
- Direct physical contact with the plaintiff is not required if the defendant’s conduct supports an inference of a common plan or cooperative activity that included the wrongful act.
- Where evidence permits competing inferences about agreement, encouragement, or joint participation in a group tort, those questions are for the trier of fact and ordinarily not resolved on summary judgment.

## Conclusion

The court held that evidence of an ongoing group practice of throwing guests into shallow water created triable fact issues on concerted action, requiring reversal of summary judgment for defendants who allegedly joined or encouraged the activity even if they did not perform the specific injury-causing push.


Herman v. Westgate, 94 A.D.2d 938, 464 N.Y.S.2d 315 (N.Y. App. Div. 4th Dep’t 1983)