## Facts

- Eddie Rael went to Emilio Cadena’s home.
- Manuel Cadena, Emilio’s nephew, severely beat Rael on the head and torso.
- Rael suffered a fractured rib and was hospitalized.
- During the beating, Emilio did not strike or physically assist Manuel.
- Rael testified that Emilio shouted encouragement in Spanish during the attack, including “Kill him!” and “Hit him more!”
- After a bench trial, the court found that Emilio encouraged Manuel while Manuel was beating Rael and held both defendants jointly and severally liable for battery.

## Issues

1. Whether a person present during a battery who does not physically participate, but verbally encourages the assailant, may be held civilly liable for the battery.
2. Whether joint and several liability requires a specific finding that the defendants “acted in concert” or that the assailant’s conduct occurred “as a result of” the encourager’s words.

## Decision

- The New Mexico Court of Appeals affirmed the judgment.
- The court held that a bystander who verbally encourages a battery at the scene may be liable as a joint tortfeasor even without physical participation.
- The court rejected Emilio’s argument that liability required a finding of “concerted action” or a specific causation finding that the battery occurred because of the encouragement.
- Because the trial court found that Emilio encouraged Manuel during the beating, imposing joint and several liability was proper.

## Legal Principles

- Civil liability for assault and battery extends beyond the direct perpetrator to persons who aid or encourage the tortious act.
- Under Restatement (Second) of Torts § 876(b), a person is liable for harm caused by another’s tort if the person knows the conduct is wrongful and gives substantial assistance or encouragement.
- Mere presence at the scene of a battery, without more, is insufficient for liability.
- Verbal encouragement at the scene can constitute substantial encouragement supporting liability and joint and several responsibility for the resulting harm.

## Conclusion

A person who does not physically participate in a battery may still be held jointly and severally liable when, while present, the person actively encourages the assailant with words that constitute substantial encouragement under Restatement § 876(b); mere presence alone does not suffice.


Rael v. Cadena, 604 P.2d 822 (N.M. Ct. App. 1979)