Summary Judgment for Plaintiff in a P.I. Case?

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?

Comments

[Bryan Sims]

I think that in cases where the injuries are more difficult for a jury to understand, such as soft tissue injuries, evidence of liability may be the best stuff that plaintiff's counsel has to offer. In such a case, I think it makes sense not to file a motion for summary judgment. In cases in which the plaintiff has good evidence with respect to damages, I think filing a motion for summary judgment may make sense. On the balance, however, I think it is useful for the jury to hear evidence of liability.

[John McCarthy]

If there is clean liability then the Defense - especially in soft tissue cases - usually admits liability on the eve of trial. 95% of the time the Judge allows them to amend their answer. They usually do this along with a motion in limine barring any mention of when they admitted liability.

Why not admit ahead of time? It is done to make the Plaintiff's attorney work and expend time and resources on liability witnesses.

Have I moved for summary judgment in a Plaintiff's case? Yes. Why? Make the defense work to brief the answer. Also moving for partial summary judgment on certain aspects of a case, i.e. on provocation on a dog bite case. It helps of focus the mind of the adjuster and get them to put money on the case.

[Evan Schaeffer]

Thanks for those comments, which were very helpful . . .