Mein ex rel. Mein v. Cook
In Mein ex rel. Mein v. Cook, 219 Ariz. 96, 193 P.3d 790 (App. 2008), two drivers who had been drinking alcohol agreed to drag race by "revving their engines and bantering back and forth" while stopped at a light. Id. at 97-98,3-4, 193 P.3d at 791-92.
When the stoplight changed, the drivers "peeled out" and began to race, ultimately ending in an accident. Id.
The passenger in one car was injured and sued both drivers, asserting joint liability pursuant to A.R.S. 12-2506(D)(1). Id. at 98,5, 193 P.3d at 792.
On appeal, we held that a prima facie case under this provision requires evidence that the parties (a) knowingly agreed to commit an intentional tort that (b) they were certain or substantially certain would result in the consequences complained of, and (c) actively participated in commission of the tort. Id. at 99-100,12, 17, 19, 193 P.3d at 793-94.
Because evidence did not suggest the drivers were certain or substantially certain their race would cause an accident or serious physical injury, the Court held that the drivers had not formed a conscious agreement to commit an intentional tort. Id. at 100, 101,20, 23, 193 P.3d at 794, 795.