Gul Nageen Ahmed, at age 7, was riding her bicycle near a retention pond. She lost control of the bike, slid down an embankment into the pond, and drowned.
Wasim Ahmed, as administrator of Gul’s estate, sued the homeowner association that owned the retention pond and the association’s property manager. A jury gave the estate a $100,000 judgment.
The estate’s theory at trial was that other debris in the pond caused Gul to get entangled with her bicycle, entrapping her in the water. The jury was given a special interrogatory, to which the estate did not object, asking, “Did the rusted bicycle proximately cause Gul Ahmed’s death?” The jury answered, “No.” The homeowner association then asked, and the trial judge agreed, to vacate the judgment as being irreconcilable with the jury’s answer to the question.
The estate appealed. In the appellate court, the estate argued that the jury’s verdict could have been based on a theory other than the bicycle having been the cause of Gul’s death. The First District Illinois Appellate Court rejected the estate’s argument, and ruled that the estate could not change its theory of liability for the first time in the appellate court.
Based on the evidence presented, the only bicycle that plaintiff could be referring to was the rusted bicycle in the pond where they found Gul, which was the same bicycle that was pulled out of the water by police. It is well settled that the theory under which a case is tried in the trial court cannot be changed on review … To allow a party to change his or her trial theory on review would weaken the adversarial process and the system of appellate jurisdiction, and could also prejudice the opposing party, who did not have an opportunity to respond to that theory in the trial court … Accordingly, plaintiff’s new hypotheses are inconsistent with the evidence of proximate cause and his theory at trial.