My son was struck by a car speeding on a residential street. One witness told me that it looked like two cars were racing down the street. But only one of the cars struck my child. Does my son have claims against both drivers?
Your son has possible claims against both drivers for the injuries sustained in the accident. The liability against both comes from the legal principle of “acting in concert.”
This is different than two people acting in a joint venture. An example of a joint venture may be two businesses submitting a bid on a large job. Neither business could handle the large job by themselves.
Acting in concert is similar to a joint venture, but the activity between the two parties is more limited. If two people are acting to commit a tortious act, both actively taking part, encouraging, or adopting the acts of the offending driver (who struck your son), then they are jointly and severally liable for your son’s damages. Bicher v Lilly Co., 55 NY2d 571 (1982).
Proof of a Race
Therefore it is possible both drivers could be liable for your son’s damages. The difficulty will be proving that the two cars were actually racing against each other. It is not sufficient for a witness to testify that they saw two different cars speeding along side each other on a residential street.
There has to be some additional proof to link up the cars to a competition between each other. For example, if there was a witness who could testify that the two drivers had yelled at each other at a prior intersection. Or if there a witness who heard the two vehicles racing their engines prior to any alleged race beginning, then a jury could infer acting in concert. But testimony that two cars were speeding is not enough for a jury to conclude that the drivers were acting in concert. Shea v Kelly, 121 AD2d 620, 503 NYS2d 649 (2d Dept 1986).
By James Santner, Esq.
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