A recent case out of Connecticut, White v. Mazda Motor of Am., Inc., 313 Conn. 610 (2014), illustrates the importance of sufficiently pleading claims and defenses, and moving for leave to amend the pleadings if there is some question or doubt as to whether a claim or a defense has been sufficiently pled.
In White, the plaintiff initiated a product liability action against Mazda and the auto dealership after his vehicle caught fire. He alleged that there was a specific defect in the fuel line. After the plaintiff’s expert’s revealed that he was not an expert in the area in which he proposed to testify, and he declined to provide an opinion regarding whether the automobile was defective, the defendants moved for summary judgment arguing that the plaintiff could not prove a specific defect. The trial court granted summary judgment based on the absence of expert testimony as to a specific defect.
On appeal, the plaintiff argued that he was entitled to proceed under a malfunction theory (i.e., circumstantial evidence to support an inference that an unspecified defect attributable to a product seller was the most likely cause of a product malfunction). The defendant responded that the plaintiff had not raised this theory in the trial court. The plaintiff replied that he had provided sufficient notice of his reliance on this theory through his response to summary judgment and by his oral argument.
The Supreme Court of Connecticut disagreed with the plaintiff and held that even though the malfunction theory did not need to be pled in a separate count, the plaintiff was required to claim in his pleadings that some unspecified defect caused his harm so that the defendant could frame his presentation of evidence accordingly. The court also noted that even if it had not required the theory to be raised in a pleading, the manner in which the theory was raised in response to summary judgment was not sufficient. In an extensive dissent, two justices concluded that even though “the magic words malfunction theory” were not used, the plaintiff had done enough through his response to summary judgment to put the manufacturer on notice of the claim.
- a party cannot present a case to the trial court on one theory of liability and then argue a different theory in the appellate court;
- a party cannot raise a theory of liability for the first time in opposition to a motion for summary judgment, at oral argument, or in a motion to reargue;
- even if a new theory could be raised in this manner, it must be directly and distinctly raised;
- a party cannot raise a theory of liability for the first time on appeal if it has not been adequately raised in the trial court.
This case highlights the fact that there are many shades of gray even in a rule most lawyers would perceive to be pretty basic: you need to plead a theory or defense if you want to proceed on it. As reflected in the majority and dissenting opinions, this became quite a difficult issue for the appellate court. So what are some ideas to avoid having this becoming an issue in your case?
- Don’t be an Ostrich! The fact that your complaint survived a motion to dismiss or that you pled a series of affirmative defenses does not mean you are done with the pleadings.
- Take a good look at your pleadings at various stages of the litigation to be sure that you have not only the evidence to support the claim or defense that you have pled, but also that your claim or defense is consistent with the evidence that you have discovered.
- Early in the case, look at the jury instructions applicable to your claims or defenses to be sure you are comfortable that your pleadings are sufficiently specific to cover all of the necessary elements.
- If there is some question or doubt as to whether a claim or a defense has been sufficiently pled, take action: move for a continuance or move for leave to amend the complaint or defenses.
- As with many issues concerning preservation of error and waiving error, the court’s conclusion will turn on issues of notice, avoiding surprise and undue prejudice.