Posted on January 16, 2012 by Mark T. McAndrew

"Alternative Liability" Doctrine

Passengers in a minivan were injured in a two-car collision. The passengers sued both drivers of the vehicles. The jury found no negligence on the part of both drivers. The judge granted the passengers’ motion for retrial concluding “the jury’s finding…is unreasonable and against the manifest weight of evidence…” The defendants appealed the order for retrial.   The Appellate Court, 1st District reversed because “the jury could have found that the passengers failed to prove by a preponderance of the evidence that the drivers were negligent.” The verdicts were also not legally inconsistent or against the manifest weight of evidence.   Anderson v.Anderson, 2011 IL App (1st) 110034 (Sep. 30, 2011).

The court stated since this case involved plaintiffs suing multiple potential tortfeasers, the burdens of proof between innocent, injured parties must be discussed. This raises the “doctrine of alternative liability,” which the Illinois Supreme Court has adopted. Smith v. Eli Lilly & Co., 137 lll.2d 222 (1990).   Alternative liability may apply when two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joint defendants cause the injury. The burden of proof then shifts to each defendant to prove his innocence with respect to causation. However, the innocent plaintiff still must prove that each tortfeasor was negligent before the burden will shift. Wyscocki v. Reed, 222 Ill. App. 3d 268 (1991). 

Here, because the jury did not find negligence on the part of the drivers and because the jury could have found that that the plaintiffs failed to prove the negligence of both defendants, the use of the doctrine of alternative liability was unavailable.  

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Posted on January 4, 2010 by Mark T. McAndrew

Slip and Fall Plaintiff Gets Another Swing

The Illinois Appellate Court recently gave the plaintiff another bite at the apple in a slip and fall case against Wal-Mart. In Cano v Wal-Mart stores Inc., the plaintiff claimed injury from allegedly slipping on a soapy substance at the Northlake Wal-Mart.

Wal-Mart filed a motion for summary judgment claiming it had no actual or constructive notice. In the plaintiff’s deposition she claimed that she overheard an employee tell his supervisor that he had already been told to clean up the substance. Wal-Mart addressed this claim by arguing that the statement was inadmissible hearsay and not trustworthy because of inaccuracies of the names of the employees.

The plaintiff not only failed to file a written response to the motion but did not attend the hearing on the motion. The hearing was rescheduled and the plaintiff, once again, did not attend. Circuit Judge Sheldon Harris granted the motion. Plaintiff moved for the court to reconsider but was denied. She then appealed to the Appellate Court.

In the order from the Appellate court, Justice Hoffman reversed the District Court and remanded the case back for further proceedings. The court ruled that the statement at issue constituted an admission by Wal-Mart and that the plaintiff “presented at least some evidence that Wal-Mart had actual notice of the spilled detergent prior to the slip and fall.”

Illinois courts have once again shown their propensity to give plaintiffs every opportunity to keep their case alive even when plaintiffs fail to respond or even attend briefing hearings on motions for summary judgment.

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