In a personal injury case--I'll take an auto accident as an example--liability on the part of the defendant is often fairly clear. Yet motions for summary judgment, even in cases of clear liability, are the exception rather than the rule. "A motion for partial summary judgment on liability?" the plaintiff's lawyer thinks. "Isn't liability a jury issue for trial?"
In a recent decision from the Fifth District, the Court upheld the trial court's grant of summary judgment on the issue of liability in an auto case. In Morgan v. Richardson, defendant pled the typical affirmative defenses: failure to keep a proper lookout, failure to observe due care in approaching an intersection, etc. Yet the defendant's lack of evidence about these defenses, coupled with defendant's admission in deposition that plaintiff could not have avoided the accident, carried the day for plaintiff.
Has anyone else grappled with this issue? In a case of clear liability, would it be reasonable for a plaintiff to conclude that he *wants* the jury to hear the evidence about liability? And how is the equation changed when the defendant fails to plead affirmative defenses?