NO. 89-220 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JEANETTE SLOAN, as conservator of the 

Estate of John P. Sloan, 

plaintiff and Respondent, 

-vsRICHARD FAUQUE AND TED ZENZIUS, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Ninth Judicial ~istrict, 

In and for the County of ~lacier, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen C. Berg; Warden, Christiansen, Johnson & Berg, 

~alispell, Montana 

For Respondent: 

Stephen D. Roberts, Bozeman, Montana 

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3 Submitted on Briefs: Aug. 24, 1989 

C3 =* =: zw Decided: October 17, 1989 

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Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

Richard Fauque and Ted ~enzius, defendants and 

appellants, appeal from a partial summary judgment entered in 

favor of plaintiff and respondent, Jeanette Sloan, as 

conservator of the estate of John P. Sloan, by the District 

Court of the Ninth Judicial District, Glacier County. We 

affirm and remand for proceedings pending before the District 

Court. 

The sole question raised on appeal is whether the 

District Court properly granted a partial summary judgment 

pursuant to Rule 56(a), M.R.civ.P., in favor of respondent on 

the issue of liability. 

The facts of the case are undisputed. On April 5, 1987, 

~enzius attended a "kegger" party in Shelby, Montana. Among 

the guests were Will Newberry, Mark Barnes, and Glen Gorman. 

Later that evening, the party moved to the Newberry home in 

Cut Bank. ~enzius transported the keg from the Shelby 

residence to the Cut Rank residence in his vehicle. The keg 

was taken into the Newberry home where it was made available 

for consumption. The party-goers proceeded to drink the 

contents of the keg. 

On that same evening, Fauque, who was walking home from 

work, was approached by Barnes, who asked Fauque if he wanted 

to drink some beer. Fauque responded in the affirmative and 

the pair proceeded to the Newberry residence in the Barnes 

vehicle, where Fauque did in fact consume the beverage. 

Shortly thereafter, some Shelby kids arrived at the 

party and wanted to take the keg. An argument ensued over 

the matter between Barnes, Gorman, and the Shelby kids. The 

Shelby kids took the keg and left the party in a vehicle 
driven by Jeffrey Hodges (the Shelby vehicle) . As the 

vehicle departed, Gorman and Barnes yelled and screamed at 

the vehicle's occupants. 

Gorman returned to the Newberry residence and informed 

everyone that the Shelby kids had called them a derogatory 

name. He then encouraged the people in the house to go with 

him to "beat up" the Shelby kids. Fauque and Zenzius were 

present at that time. 

Fauque and zenzius voluntarily joined Gorman, Barnes, 

and Newberry in Barnes's vehicle to pursue the Shelby 

vehicle. Zenzius later stated that he assumed that "we were 

going to get in a fight" when the group got into the vehicle 

and that the group was the type who would get into such a 

fight. Both Fauque and zenzius were aware of the violent 

reputation of Gorman. 

As Barnes was backing his vehicle out of the driveway, 

it became stuck on a fence. Fauque assisted Barnes in 

freeing the vehicle by stepping on the fence. ~pproximately 

five minutes had lapsed since the departure of the Shelby 

vehicle. Both Fauque and ~enius were aware that the Barnes 

vehicle would have to speed to catch up to the Shelby 

vehicle. The Barnes vehicle did in fact travel 80-90 miles 

per hour on U.S. Highway 2 from Cut Bank to Shelby in pursuit 

of the Shelby vehicle. 

The Barnes vehicle did catch up with the Shelby vehicle, 

at which time the two vehicles passed each other back and 

forth. Gorman leaned out the back window of the driver's 

side of the Barnes vehicle and yelled at the kids in the 

Shelby vehicle. He then leaned out the window and opened the 

door of the Shelby vehicle. He also threw a piece of rubber 

at the vehicle. At no time did either Fauque nor ~enzius say 

anything to anyone about slowing down or abandoning the 

chase. As a consequence of the chase, a collision occurred 
between the two vehicles which resulted in serious and 

disabling injuries to John Sloan, a passenger in the Shelby 

vehicle. 

The sole question raised on appeal is whether the 

~istrict Court properly granted a partial summary judgment 

pursuant to Rule 56(a), M.R.civ.P., in favor of respondent on 

the issue of liability. 

A party moving for summary judgment must prove that he 

is entitled to summary judgment as a matter of law by 

demonstrating an absence of any genuine issue of material 

fact. Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 

P.2d 509. As noted, the facts of the case are not in 

dispute. The appeal centers around whether Fauque and 

Zenzius are liable as tortfeasors acting in concert--a 

question of law. 

Fauque and Zenzius argue that their involvement in the 

action does not constitute a tort since they were not driving 

the vehicle involved in the accident but were merely 

passengers in the vehicle. The ~istrict Court, however, 

found that defendants did indeed act in concert as 

tortfeasors as defined in part in Restatement (Second) of 

Torts S 876 (1979) as follows: 

For harm resulting to a third person from the 

tortious conduct of another, one is subject to 

liability if he 

(b) knows that the other's conduct constitutes a 

breach of duty and gives substantial assistance or 

encouragement to the other so to conduct himself. 

While the issue raised is one of first impression in 

Montana, several other jurisdictions have determined that 

where two or more persons commit tortious acts in concert, 

all are liable for the tortious acts of anyone. Huckeby v. 

Spangler (Tenn. 1975), 521 S.W.2d 568. See also Herman v-. 
Westgate (N.Y. App. D~V. 1983), 94 A.D.2d 938, 464 N.Y.S.2d 

315 (equal liability found where defendant participated in 

the concerted activity of throwing stag party guests from a 

barge) ; ~rnerican Family Mutual Ins. Co. v. Grim (Kan. 1968), 

440 P.2d 621 (joint and several liability found where 

defendant aided, abetted, and encouraged breaking into a 

church at night to steal sodas and, unknown to the defendant, 

his two friends lit torches to light the darkened church, 

which subsequently caused a fire therein). 

Defendants argue that because they were not in control 

of the Barnes vehicle and did not make any encouraging 

statements to the driver, they should not be held liable for 

the resulting accident. We disagree. In Schiller v. 

Strangis (D. Mass. 1982), 540 F.Supp. 605, the court held 

that where the defendant knowingly joined in committing a 

tort and by his silence encouraged the tort, he was liable. 

The same holds true in the present case. Fauque and Zenzius 

voluntarily joined the group in the Barnes vehicle. They 

knew the vehicle would have to speed to catch up with the 

Shelby vehicle. They also knew that the purpose of the chase 

was to eventually assault the occupants of the vehicle. The 

silence of the defendants during the chase does not negate 

their involvement nor excuse their liability. 

Further, Fauque and Zenzius acted affirmatively in the 

joint tortious plan to chase after the Shelby vehicle and 

assault its occupants. Both men responded to Gorman's 

statement that they should "beat up" the Shelby kids by 

voluntarily joining the group in the Barnes vehicle for the 

common purpose of committing an intended assault; Fauque 

substantially assisted in freeing the Barnes vehicle from a 

fence in order for the chase to commence; and both defendants 

remained silent during the chase and did not make any demands 

of abandoning the chase nor slowing the vehicle to anyone 
therein. Fauque and ~enzius encouraged Barnes's actions and 

gave him substantial assistance, thus, acting in concert with 

the occupants of the Barnes vehicle and are subject to 

liability. Summary judgment was proper. 

Affirmed and remanded for proceedings pending before the 

/ 

~istrict Court. 

We Concur: