Failure To Object At Trial Dooms Appeal In Car-Cow Crash Case

Benjamin Juday’s pickup truck was damaged when it crashed into a cow owned by David Albers. The truck was insured by American Family Mutual Insurance. American Family, as subrogee of Juday [stood in Juday’s shoes], sued Albers under the Illinois Domestic Animals Running At Large Act to get compensation for the damage to the truck.

During the trial, American’s lawyer argued that Albers did not show he acted reasonably to restrain the cow. Albers argued just the opposite. A jury returned a verdict in favor of Albers. American Family asked the trial court for judgment notwithstanding the verdict. The trial court denied American’s request, so the insurer appealed.

In the appellate court, American Family argued that Albers could not argue he acted reasonably because (1) Albers’s reasonableness was an affirmative defense to American’s claim under the Animals Running At Large Act, and (2) Albers had not submitted a written affirmative defense.

The Third District Illinois Appellate Court rejected American’s waiver argument. Even though Albers had not submitted a written affirmative defense, the question of Albers’s reasonableness was central to the trial, and American Family had not made the objection in the trial court. Here’s how the court explained it:

Here, the plaintiff [American Family] has waived any objection to the defendant’s failure to plead reasonable care as an affirmative defense by failing to object at trial. The record indicates that the defendant’s theory throughout trial was that the plaintiff’s claim would be defeated because he had used reasonable care to restrain his cattle. The issue of whether the defendant exercised reasonable care was discussed by both parties in opening statements and in their closing arguments. Further, the plaintiff questioned the defendant as part of its own case-in-chief on the issue of the defendant’s use of reasonable care. Both parties argued the issue in the context of the motions for directed verdict. Moreover, the plaintiff did not object to the defendant’s proffered jury instructions discussing reasonable care. There was no surprise in the defendant’s assertion of reasonable care as a defense.

So while American argued that Albers waived a reasonableness defense, the appellate court ruled that American waived that argument because it had not raised it in the trial court. In the end, the appellate court affirmed Albers’s judgment. Read the whole case, American Family Mutual Insurance Company v. Albers, No. 3-09-0839 (2/10/11), by clicking here.