§19.2 Conspiracy is Not a Cause of Action

The Case: Foster Business Park, LLC. v. Winfree , 2009 WL 113242 (Tenn. Ct. App. Jan. 15, 2009).

The Basic Facts: Surti, an owner of the Plaintiff Foster Business Park, LLC, alleged two defendants conspired with another to gain access to confidential information.

The Bottom Line:

  • "'An actionable civil conspiracy is a combination of two or more persons who, each having the intent and knowledge of the other's intent, accomplish by concert an unlawful purpose, or accomplish a lawful purpose by unlawful means, which results in damage to the plaintiff.'Trau-Med of America, Inc., 71 S.W.3d at 703; see Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn. 2001) ( citing Dale v. Thomas H. Temple Co., 208 S.W.2d 344, 353 (Tenn. 1948)). The elements for civil conspiracy under Tennessee common law, therefore, are: (1) a common design between two or more persons; (2) to accomplish by concerted action an unlawful purpose, or a lawful purpose by unlawful means; (3) an overt act in furtherance of the conspiracy; and (4) injury to person or property resulting in attendant damage. Braswell v. Carothers, 863 S.W.2d 722, 727 (Tenn. Ct. App. 1993). In addition, civil conspiracy requires an underlying predicate tort allegedly committed pursuant to the conspiracy. Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 721 (E.D. Tenn. 2001) ( citing Tenn. Publ'g Co. v. Fitzhugh, 52 S.W.2d 157, 158 (Tenn. 1932))." 2009 WL 113242 at *16.

  • "Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. Freeman Mgmt. Corp. v. Shurgard Storage Centers, LLC., 461 F.Supp.2d 629, 642-643 (M.D. Tenn. 2006). By participating in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. Id.; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994); Accord. Beck v. Prupis, 529 U.S. 494, 503 (2000) (noting it was "sometimes said that a conspiracy claim was not an independent cause of action, but was only the mechanism for subjecting co-conspirators to liability when one of their members committed a tortious act")." Id.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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