## Facts

- Jeremy Faggard drove his vehicle with his friend Russell Allen as a passenger; both were under 21.
- During their time together, Faggard pulled into a convenience store to buy beer.
- Allen later stated he did not know that buying alcohol was Faggard’s purpose when they went for a drive.
- Allen also stated he did not pay any portion of the purchase price for the beer.
- After obtaining the beer, Faggard drank about seven beers, and Allen drank about four to five beers.
- Allen later asked Faggard to drive him to his house so Allen could make it to dinner.
- While on that trip, Faggard’s vehicle collided with a car driven by Robert Shinn.
- Robert Shinn was killed, and his wife, Gail Shinn, was seriously injured.
- Gail Shinn sued Allen for negligence, alleging Allen substantially assisted or encouraged Faggard’s intoxicated driving and was liable under a concert-of-action theory.
- Allen moved for summary judgment, arguing he owed no duty to Gail Shinn. The trial court granted summary judgment for Allen, and Gail Shinn appealed.

## Issues

1. Whether the summary-judgment evidence raised a genuine issue of material fact that Allen owed a duty under a concert-of-action theory because he substantially assisted or encouraged Faggard’s intoxicated driving that caused the crash.

## Decision

- The appellate court affirmed the trial court’s summary judgment for Allen.
- The court concluded the evidence did not raise a fact issue that Allen substantially assisted or encouraged Faggard’s wrongful conduct, as required for concert-of-action liability.
- The court treated Allen’s conduct—drinking and later requesting a ride from Faggard—without more, as insufficient to create a duty to third parties injured by Faggard’s driving.

## Legal Principles

- Under a concert-of-action theory reflected in Restatement (Second) of Torts § 876, a person may be liable for another’s tort when, with knowledge of the other’s breach of duty, the person gives substantial assistance or encouragement to the tortfeasor.
- “Substantial assistance or encouragement” requires more than being present, being friends, or engaging in similar conduct; there must be affirmative conduct that meaningfully aids or encourages the tort.
- In evaluating whether assistance is substantial, courts consider factors such as the nature of the wrongful act, the kind and amount of assistance, the relationship of the parties, presence at the time of the wrongful conduct, and the alleged aider’s state of mind.
- On summary judgment, once the movant establishes entitlement to judgment as a matter of law (including by negating an element such as duty/substantial assistance), the nonmovant must produce evidence raising a genuine issue of material fact.

## Conclusion

Because the summary-judgment record did not show that Allen paid for the alcohol, knew the purpose of the beer purchase when the drive began, directed or urged Faggard to drink or drive while intoxicated, or otherwise affirmatively aided or encouraged the intoxicated driving that led to the collision, the court held there was no fact issue on concert-of-action liability and affirmed summary judgment for Allen.


Shinn v. Allen, 984 S.W.2d 308 (1998)