The common law elements of conspiracy in criminal law are simple and straightforward: there must (1) be an agreement; (2) between two or more people; and (3) the agreement must be to commit a criminal act or to accomplish a legal act by illegal means. Conspiracy falls under complicity doctrine, which means that a defendant who did not actually commit the crime, but was involved (coconspirator), can be held liable as if he had committed the crime himself. Unfortunately, there is not a clear three-step process for civil conspiracy. Civil conspiracy does fall under complicity doctrine as well, which means that all coconspirators will be held liable as if they had committed the act.
According to Minnesota courts, the elements of civil conspiracy include (1) an agreement between two or more people “to commit an unlawful act or a lawful act by unlawful means;” (2) an tort or criminal act must have occured; and (3) the plaintiff must have been hurt or damaged. Steele v. Mengelkoch, 2008 Minn. App. Unpub. LEXIS 927 (Minn. App. August 5, 2008), Milavetz, Gallop & Milavetz, P.A. v. Hill, 1998 Minn. App. LEXIS 860 (Minn. App. July 28, 1998). The essential elements for establishing a case of civil conspiracy are that the plaintiff must have been injured by a tortuous or criminal act. The Supreme Court of the United States echoed these elements, holding “a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious.” Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (emphasis added).
Because it is not possible for two or more people to agree to be negligent, a claim for civil conspiracy is satisfied only when a crime or an intentional tort has occurred. See Senart v. Mobay Chemical Corp., 597 F. Supp. 502, 505 (D. Minn. 1984) (holding “it was impossible to conspire to commit negligence or fail to exercise due care. Civil conspiracy . . . had to be based on a criminal act or an intentional tort.”)
An important notion to keep in mind is that a plaintiff cannot bring a claim solely based on civil conspiracy. Rather, a plaintiff will use civil conspiracy as a vehicle to hold coconspirators liable for a tortuous or criminal act. Bloom v. Hennepin County, 783 F.Supp. 418, 446 (D. Minn. 1992). The true cause of action the plaintiff brings is based on the tortuous or criminal act. The plaintiff will use a civil conspiracy claim to hold other defendants fiscally liable. Therefore, civil conspiracy will be employed by the plaintiff to assemble as many coconspirators in an attempt to maximize the amount of potential liability.