The Need for Rational Boundaries in Civil Conspiracy Claims
Behrens, Mark A.
Appel, Christopher E.
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Recently, the tort of civil conspiracy has become a favored weapon of plaintiffs’ lawyers in mass tort product liability litigation involving asbestos, breast implants, tobacco, automotive tires and other products, as well as in toxic tort cases. Civil conspiracy claims are often asserted by plaintiffs to allege the liability of peripheral defendants based on their associations with the party primarily responsible for the allegedly injurious product—the manufacturer— such as through membership in a relevant industry or trade association. These claims also fit into a broader pattern of plaintiffs’ attorneys seeking to extend concepts of vicarious liability, even to implicate entire industries. Examples of theories that have been raised based on the same type of philosophy include market-share, enterprise, concert of action, aiding and abetting, and public nuisance. By and large, courts have been reluctant to impose liability on one entity or individual for the acts of another. Civil conspiracy claims represent another front in the effort to expand the scope of liability for the unlawful acts of another. Civil conspiracy claims were intended to address situations involving an agreement between two or more persons to commit an unlawful or tortious act, an act in furtherance of that agreement, and special damages caused by the act. In practice, however, courts have struggled with the application of this seemingly straightforward doctrine and the law remains unclear and unsettled. Even the basic contours and scope of a civil conspiracy claim have not been clearly or adequately defined by many courts. A few courts have subjected attenuated defendants to liability by glossing over one of the most basic elements of tort law—the existence of a duty of care—creating the potential for a super-tort. This article examines the public policy implications of expanding the reach of civil conspiracy law. The article concludes that requiring a defendant to have an independent duty to the plaintiff—a duty based upon the existence of a relationship between the plaintiff and defendant—provides a necessary, rational boundary to otherwise amorphous civil conspiracy claims. Currently, courts are narrowly divided as to whether an independent duty is required in civil conspiracy claims, although a bare majority of courts that have addressed the issue recognize this safeguard. As additional courts consider such claims, the article recommends that they follow this sound path. The article also suggests that courts clarify other key elements of civil conspiracy claims to promote predictability and litigation fairness.