Civil Procedure

McCormick v. Kopmann

CHAPTER 3: Describing and Defining the DisputeB. Describing and Testing the Plaintiff’s Claim

2. Consistency ad Honesty in PleadingA. Inconsistent Allegations

NAME: McCormick v. Kopmann, 23 Ill.App.2d 189, 161 N.E.2d 720, App. Court of Illinois, Third District, 1959

FACTS: o π (McCormick, wife of deceased driver) v. ∆ (Kopmann, truck driver), ∆ (Huls, tavern owners)o π killed upon collision with Kopmann’s truck, π also drank at Huls’ tavern before accidento π claims:

Count I: Illinois Wrongful Death Act – Kopmann negligently drove truck across center line, π was “in the exercise of ordinary care for his own safety…”

Count IV (brought in the alternative): Illinois Dram Shop Act – Huls supplied alcohol, rendered π intoxicated and collision was “result of such intoxication”

PROCEDURE: o Kopmann MTD complaint re: contradictions between Count ! and IV; trial court deniedo Conflicting testimony on who drove over center line, testimony McCormick drank several beerso ∆s’ (Kopmann, Huls) motions for directed verdict deniedo Verdict against Kopmann for $15,500 under Count I; for (in favor) of the Huls under Count IVo Kopmann appeals alleging trial court erred in pretrial MTD re: inconsistent allegations

ISSUE: Substantive Issue(s):1. Can π plead on alternative counts, regardless of consistency, in the same action?

a. Are Counts I and IV inconsistent with each other?

HOLDING: Yes.

REASONING: Rule: (Ill. Wrongful Death) Freedom from contributory negligence is prereq to recovery under WDA.o π could’ve been contributorily negligent if intoxicated; “voluntary intoxication will not excuse a

person from exercising such care… expected from one who is sober” (Ill. S.C. Keeshan v. Elgin)o Makes Count IV hard to reconcile with Count I – mutually exclusive counts

π thus not allowed to recover on both counts

Rule: (F.R.Civ.P. 8(d)(2)) Alternative Statements of a Claim or Defense – pleading is sufficient if any one of [counts] is sufficient; claims can be made regardless of consistency; each count stands aloneo Counts can be pleaded together

o Alternative pleading allowed so issues settled and accomplished in a single action, only if pleader no knowledge of “true facts”; alt. pleading not permitted if pleader knows “nature of things” must determine fact and strike inconsistent allegation from pleading on remand

Key witness is deceased, pleading alternatives only feasible way to proceed, π has right to adduce all the proof she has under both counts

Jury is the trier of fact and either of two ∆s could be liable; π need not

DISPOSITION: Affirmed judgment and verdict.

Civil Procedure

NOTES: o Motion for directed verdict: made before case is submitted to jury; “no reasonable jury could find for opposing party”

o Averments: affirmation or allegationo Seriatim: taking one subject after another in regular order, point by pointo Laches: unreasonable delay in making assertion or claim, “sleeping on rights”

Verifying pleadings when π lacks personal knowledge/prevent “sham pleadings”? Make allegations on “information and belief”, pleader is not claiming personal knowledge as to matters although they are believed to be true; lawyer’s signature on complaint to show justified (Fed. R. Civ. P. 11(a))

Prompt filing encouraged and required by SOL, laches, need to preserve evidence, etc. Does not require complaints to be verified (Fed. R. Civ. P. 11(a)) and allow for pleadings in the alternative (so party can preserve its options) – useful in product liability cases; this is allowed because pleadings precede discovery and trial, evidence will show