Chapter 10 - § 10.1 • ELEMENTS OF LIABILITY

• Jurisdiction: Colorado

§ 10.1 • ELEMENTS OF LIABILITY

To recover on a claim of civil conspiracy, the plaintiff must establish the following four elements:

1) Two or more persons;
2) An object to be accomplished;
3) A meeting of the minds on the object or course of action;
4) An unlawful overt act; and
5) Damages proximately caused by the overt act.⁴

The burden of proof is on the plaintiff asserting the civil conspiracy claim.⁵ Each element of the claim must be established by a preponderance of the evidence.⁶

Civil conspiracy claims can be difficult to prove with direct evidence because it is rare that co-conspirators will testify to the existence of the conspiracy.⁷ To adequately plead a civil conspiracy claim based on circumstantial evidence, it is critical to allege facts that are more consistent with the alleged conspiracy and that cannot be equally explained by independent action.⁸

Furthermore, to the extent the civil conspiracy claim is based on acts that are unlawful because they constitute fraud, the fraudulent acts must be pleaded in compliance with the heightened particularity standard required by Colorado or Federal Rule of Civil Procedure 9(b).⁹

§ 10.1.1—Two or More Persons

The need for two or more participants is critical to establishing a civil conspiracy claim under Colorado law because one person cannot conspire with himself or herself.¹⁰ While two or more persons must be involved in the conspiracy, not all co-conspirators must be sued for a plaintiff to assert a civil conspiracy claim. An action may be brought against any one or all of the members of the conspiracy.

A civil conspiracy claim is not limited to just natural persons — a civil conspiracy claim may be brought against corporations, LLCs, LLPs, and other legal entities. But to satisfy the "two or more persons" element of a civil conspiracy claim, the plaintiff cannot simply assert a claim for civil conspiracy against a business entity and its employees or agents.¹¹ Rather, a business entity and its employees cannot satisfy the "two or more persons" element required for a civil conspiracy claim, except where the employees are alleged to have acted in their individual capacities for their own individual advantage, as opposed to acting merely on behalf of the corporation.¹² This is so because under generally accepted corporate principles, a director cannot conspire with the corporation he or she serves.¹³

In the context of a conspiracy to breach or interfere with a contract, Colorado courts have concluded that because contracting parties owe a duty to perform a contract according to its terms, a contracting party has no independent duty not to conspire to breach its own contract.¹⁴ In other words, a party cannot conspire to interfere with his or her own contract, and there can be no conspiracy by two or more parties to a contract to breach that contract.¹⁵

§ 10.1.2—Object to Be Accomplished: The Purpose of the Conspiracy

A civil conspiracy claim can be maintained where the plaintiff asserts either an object to be accomplished (i.e., the purpose of the conspiracy) that is unlawful or a lawful object accomplished by unlawful means.¹⁶ The agreement itself may be implied by course of conduct or other circumstantial evidence.¹⁷

§ 10.1.3—Meeting of Minds

Specific intent is not necessary to establish a civil conspiracy claim. The co-conspirators or joint tortfeasors need not "knowingly agree to engage in conduct that is known at the time of the agreement to be tortious."¹⁸ Instead, all the plaintiff must establish is the existence of "a conscious and deliberate decision to pursue a common plan or design."¹⁹ This common plan or design "need not be shown to have been entered into for the specific purpose of [injuring] the particular person damaged. . . . If such agreement and concert of action resulted in damages . . . it is such result that constitutes [the] cause of action, and it is good as against all who participated in...