On August 28, 2012, the Supreme Court of Ohio handed down a merit decision in De Vries Dairy, L.L.C. v. White Eagle Cooperative, 2012-Ohio-3828. The issue in this case is whether, under the applicable circumstances, Ohio recognizes a cause of action for tortious acts in concert under the Restatement (2d) of Torts, § 876. The Court accepted this as a certified question from the federal district court in Toledo.

Here’s the controverted Restatement section:

The Restatement (2d) of Torts § 876, Persons Acting in Concert

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(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, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

The issue in the case at bar had arisen when the plaintiff, a member of the defendant’s dairy farming co-operative, which was operated and managed on a daily basis by Jacoby & Co. and its subsidiary Dairy Support, Inc., alleged that Jacoby and DSI, with the full knowledge of White Eagle, failed to pay DeVries its share of the milk proceeds under the co-operative agreement, and that all defendants should be collectively liable to DeVries for tortiously acting in concert.

In a 6-1 unsigned opinion, the Court answered the certified question in the negative.

Justice Pfeifer dissented from the per curiam decision, saying he would answer the certified question in the affirmative.  It is his position that Ohio has recognized a cause of action for tortious acting in concert, but has not yet had a case in which all the elements of that tort have been met. He cited Great Cent. Ins. Co. v. Tobias, 37 Ohio St.3d 127, 130, 524 N.E.2d 168 (1988) as an example of what he described as  a “de facto” recognition of this tort, meaning the Court acknowledged Section 876, but found the plaintiff had failed to meet the elements in that case.  He also cited several appellate decisions along the same lines.

“It seems clear from the case law that courts in Ohio have treated the common-law tort of tortious acts in concert as described in 4 Restatement, Section 876 as if it is part of the law of Ohio. That no plaintiff has presented sufficient facts to establish liability for tortious acts in concert does not mean that Ohio courts have not recognized the tort,” wrote Pfeifer.  He also wrote, as he has in the past, that “a common-law tort can apply in Ohio even if this court has not expressly recognized it.”

Concluding Observations

Justice Pfiefer’s position was clear from his first question at oral argument-“ Is it fair to say that under existing law, some state judges have found this tort is available, but under the existing facts, wasn’t met?”  As I noted after argument there was near-unanimous agreement that the certified question should be answered in the negative.  But the Court didn’t elaborate, as I’d hoped—it just went with a clear, blunt, “no”.   Just for the record, as a torts professor, I agree with Justice Pfeifer.  And I do think in the future, someone with the right case, in which all elements are there, should take another shot at this one.