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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

BRITTNEY PATTERSON, a minor, by and through her next friend and natural guardian, STEVEN EDWARD PATTERSON, next of kin and child of TAMMI McDANIEL PATTERSON, Plaintiff/Appellees, v. JERRY LESLIE DUNN, COWLEY, INC., JERRY C. HARDIN, FRED TEAGUE, DAVID TEAGUE, HAYWOOD COUNTY and BILLY T. WILLIAMS, Defendants/Appellants.

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FILED
June 16, 1999 Cecil Crowson, Jr. Appellate Court Clerk Madison Circuit No. C-94-202

Appeal No. 02A01-9710-CV-00256

APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY AT JACKSON, TENNESSEE

THE HONORABLE FRANKLIN MURCHISON, JUDGE

For the Plaintiff/Appellee:

For the Defendants/Appellants, Jerry C. Hardin, Fred Teague and David Teague: Richard Glassman James F. Horner Memphis, Tennessee

Jerry O. Potter John R. Cannon, Jr. Chapman Sellers Morrow Memphis, Tennessee

AFFIRMED

HOLLY KIRBY LILLARD, J.

CONCUR: W. FRANK CRAWFORD, P.J., W.S. ALAN E. HIGHERS, J.

OPINION This is an action for the wrongful death of the plaintiff's mother, whose death was the result of two separate vehicular accidents. A jury allocated fault among the deceased and the three other parties involved in the two accidents. The jury awarded total damages of $625,045 and assessed 75% of the fault against the appellants, the driver and owners of the truck involved in the first of the two accidents. These defendants appeal to this Court. We affirm. Two separate accidents on the morning of May 26, 1994 resulted in the death of Tammi McDaniel Patterson ("Patterson"), a single mother with one child. At approximately 7:30 a.m., Tammi Patterson was traveling eastbound on Interstate 40 ("I-40"). It was raining heavily and visibility was low. Also traveling eastbound on I-40, behind Patterson, was a dump truck owned by Haywood County, driven by Billy T. Williams ("Williams"). Another truck, a sand truck filled with a load of sand, was owned by Defendants Fred Teague and David Teague ("the Teagues") and driven by employee Jerry C. Hardin ("Hardin"), acting within the scope of his employment for the Teagues. The sand truck was entering I-40 eastbound and struck Patterson's vehicle from the rear in a relatively minor accident. When Patterson and Hardin pulled off the road, Hardin's sand truck remained partly in the lane of traffic. Within moments, a tractor trailer hauling mail, owned by Cowley, Inc. ("Cowley") and driven by employee Jerry Leslie Dunn ("Dunn") came eastbound on I-40. Dunn was acting within the scope of his employment at the time. Dunn's mail truck rear ended Hardin's sand truck, causing the sand truck to flip over and land on Tammi Patterson's vehicle, burying her vehicle in sand and asphyxiating her. Plaintiff/Appellee, Brittney Patterson ("Plaintiff"), Tammi Patterson's minor child, filed suit for wrongful death on July 15, 1994 by and through her next friend and natural guardian, her father Steven Edward Patterson. The lawsuit was filed against the Teagues and Hardin (referred to collectively as "the Teague Defendants"), Dunn and Cowley, and Haywood County and Williams. The complaint alleged that the Defendants' negligence in the operation of their vehicles directly resulted in Tammi Patterson's death, and sought both compensatory and punitive damages. The request for punitive damages was dropped at trial. Defendants Dunn and Cowley filed a crosscomplaint against the Teague Defendants. Defendants Fred and David Teague filed a crosscomplaint against Defendants Haywood County, Williams, Dunn, and Cowley. The trial court later

dismissed the Teagues' cross-claim against Haywood County and Williams.1 Subsequently, the trial court approved a settlement of Plaintiff's claims against Defendants Dunn and Cowley for $525,000. At trial, Williams testified about how the accident occurred. Williams described the weather at the time of the accident as "extremely bad" and said that it was raining "very hard." Williams stated that he noticed Tammi Patterson's car traveling in the right-hand lane ahead of his dump truck and Hardin's sand truck. Hardin's sand truck was approximately halfway down the entrance ramp to the highway, and was in the process of merging onto the highway. Williams stated that he was also traveling in the right-hand lane, but slowed to allow the sand truck to enter the highway. Williams was traveling approximately fifty to sixty miles per hour and estimated that Hardin was traveling at least as fast as Williams was. Hardin's sand truck did not travel all the way down the acceleration lane, but merged onto the highway approximately ten to twelve feet short of the end of the ramp. Within seconds of Hardin's sand truck entering the highway, Williams noticed the sand truck making a swerving motion and then car headlights shining into the woods. Williams quickly accelerated into the left lane, around Hardin's truck. Williams then moved back into the right lane, pulling off the side of the road and stopping. Before the sand truck pulled onto the highway, Williams testified that Tammi Patterson's car was traveling straight ahead and was not out of control. Both Tammi Patterson and Hardin pulled over to the shoulder of the road. Hardin's sand truck remained slightly in the right-hand lane of traffic. Before any of the parties had exited their vehicles, the tractor trailer driven by Dunn and owned by Cowley rear ended Hardin's sand truck, pushing the sand truck forward and upside down on top of Tammi Patterson's car. As Williams was moving into the left lane to avoid Hardin's sand truck, he felt an impact to his own truck. Williams later learned that the impact he felt to his truck when passing the accident was the engine from Dunn's mail truck hitting his vehicle. Williams stated that he approached both Dunn's and Hardin's trucks to see whether the drivers were hurt. He then approached Tammi Patterson's car, which was buried in sand from the dump truck. All he could see of Tammi Patterson was her right arm protruding from the sand. Williams said that he "took her hand and talked with her till she gave up." He remembered her squeezing his hand several times until her grip finally faded. Williams said that

The record does not reflect the disposition of the Teagues' cross-claim against Dunn and Cowley. 2

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Tammi Patterson never spoke and that he could not determine whether she was conscious. In his testimony, Hardin presented a conflicting version of the events of May 26. He testified that he is paid on commission per load of gravel or sand he hauls. On the day of the accident, Hardin testified that his truck was loaded with approximately fifty thousand pounds of sand. Hardin said that it was raining on the morning of the accident, "[s]omewhere between medium and hard." When he started down the entrance ramp to the highway, he stated that he looked to see the traffic on the highway and could "see lights and stuff," but "couldn't make out what nothing was." He testified that he followed the merge lane all the way down to the end before entering the highway. At the time that he merged onto the highway, Hardin looked in his side mirror to ascertain the surrounding traffic and did not see any traffic close to his truck. When he straightened out on the highway and looked in his side mirror, he noticed Tammi Patterson's red car behind his vehicle in the left lane, which he noticed was traveling faster than his truck. He was next aware of the red car "spinning out of control in the road." Hardin stated that he pulled to the shoulder of the road to avoid a collision with the car. While he was pulling to the right, the red car swung across in front of him and he felt an impact to his truck. In describing the path of Tammi Patterson's vehicle in front of him, Hardin said that "the car suddenly shot right across in front of me sideways." He was unsure whether the car hit his truck or whether his truck hit the car, but stated that Tammi Patterson's car hit the guardrail in addition to his truck. Hardin stated that he had been traveling at approximately forty to forty-five miles per hour and accelerating when he entered the highway, and could not have been traveling much faster when the initial impact with Tammi Patterson's car occurred. Hardin stated that he slowly eased off the highway to prevent pinning the car in between his truck and the guardrail because he could not see Tammi Patterson's car over the hood of his truck. Hardin acknowledged that there was ample room to pull completely off the road. Within a couple of seconds, Hardin's sand truck was struck from behind and he was "going up the road." When he was hit from behind, Hardin estimated that about half or slightly less than half of his truck was still in the right-hand lane of the highway. David Glenn Teague, one of the owners of the sand truck Hardin was driving, testified that he arrived at the scene after the accident. David Teague testified that Williams told him that he saw Tammi Patterson's car lose control and disappear in front of the sand truck. According to Teague's testimony, Dunn told Teague that he was traveling in the right-hand lane of traffic behind Williams' 3

truck, when Williams swerved into the left lane of traffic. Dunn tried to avoid hitting the Hardin truck located in the right-hand lane, but was unable to. Dunn testified that he worked for Cowley, Inc., which contracts with the United States Postal Service to transport mail. He was driving a tractor-trailer truck loaded with mail. On the morning of the accident, Dunn considered the rain to be "a little more than a moderate rain." He was also traveling eastbound on Interstate 40 that morning. He said that Williams' dump truck was about two truck lengths in front of him, in the left lane of traffic. At the point where he could completely see the entrance ramp, Dunn moved from the left to the right lane of traffic. Dunn testified that Williams switched to the right lane of traffic at about the same time, and the distance between the two trucks decreased to about one truck length. Dunn stated that, at the time he switched lanes, there were no cars on the entrance ramp. Hardin's sand truck was ahead of Williams' dump truck and it looked to Dunn like the sand truck had cleared the merge lane. Williams' dump truck then merged back into the left-hand lane of traffic. Dunn's mail truck was then "right on top" of Hardin's sand truck and could not stop in time. Dunn did not see Tammi Patterson's car spinning around three hundred and sixty degrees in the left-hand lane of traffic, nor did he see any brake lights or hazard lights on Hardin's sand truck. Dunn stated that if Hardin's sand truck had pulled off the road entirely, without any part of Hardin's vehicle remaining on the roadway, then Dunn would not have hit the sand truck. John Briley ("Briley"), The Tennessee Department of Safety trooper who was dispatched to the scene of the accident, testified that he was alerted to the wreck at approximately 7:30 a.m. He said that it was raining heavily. He observed that the right rear tail light of Tammi Patterson's car was damaged. He also found a scuff mark and a piece of red tail light lens on the guardrail. Briley did not find any debris from the rear of Tammi Patterson's car in the roadway, but noted that there were scuff marks on the driver's side door. Officer Briley also found a piece of the hub that covered the lug nuts from Hardin's sand truck in the roadway. This piece was located several feet behind the final resting places of the vehicles, close to where the road turned from asphalt to concrete. Based on scuff marks in the road, it was Briley's opinion that the sand truck and Tammi Patterson's car had both come to a complete stop when the sand truck was hit by Dunn's mail truck. Officer Briley testified that nothing prevented Hardin from moving his sand truck entirely off the road into the emergency lane. Bobby Lee Hall, an accident investigator, testified as an expert for the Teague Defendants. 4

Hall testified that he had a conversation with Williams at approximately 9:30 p.m. on June 2, 1994, when he called Williams at home. The telephone conversation was audio recorded with Williams' permission and a transcription of the tape was entered into evidence at trial. Hall testified to the accuracy of the transcription, but noted that it contained several blanks because portions of the tape were inaudible. On cross examination by Plaintiff's counsel, Hall admitted that he had talked with Hardin sometime before calling Williams. In his cross examination of Hall, Plaintiff's counsel emphasized one of Hall's questions in which he referred to Hardin; Hall asked Williams: "He thought he was about in 9th gear and gotten up probably to 50 somewhere around 50 miles an hour?" A second expert, David G. Brown, testified for the Teague Defendants. Brown has a master's degree in mechanical engineering and has performed consulting work involving traffic accident investigation for more than twenty years. Brown gave his expert opinion at trial about how the two accidents occurred. Brown reviewed the police report, including handwritten statements, pictures of the accident scene, pictures of the vehicles and accident site taken at a later time, and the depositions of the drivers involved in the accident. In addition, he inspected the accident scene and met with Trooper Briley, the police officer dispatched to the scene. When Brown inspected the site at which the accident occurred, Brown noted the condition of the roadway and took a variety of measurements. He testified about an area of transition of the roadway from asphalt to concrete where, in his opinion, the condition of the concrete was poor. When he examined photographs of Tammi Patterson's car, he noted that the only damage was to the right rear lens grouping, which resulted from impact with the guardrail. He found no evidence that Tammi Patterson's car was rear ended or "overrun" by the Hardin sand truck. Brown relied on several items of physical evidence in forming his opinion: the damage to the right rear of the car, the lack of additional damage to the rear of the car, the guardrail damage, the damage to the driver's side door of the car, the paint marks on the bumper of Hardin's sand truck, and the transition area of the pavement. Brown opined that Tammi Patterson lost control of her car when it encountered the transition area on the roadway, at which point the vehicle started spinning to the right, crossed in front of the sand truck, ricocheted off the guardrail back into the roadway, and impacted with Hardin's truck on the driver's side of the car. Brown testified that, in reaching his conclusion, he relied on Hardin's testimony that the car was spinning and traveling from left to right. Brown did not feel that this was inconsistent with Williams' testimony that the car was originally in the right lane of traffic. He testified that there was 5

not enough information available to calculate the speeds of the vehicles. He also testified that the shoulder was wide enough for Hardin to pull his truck completely off the road and that, if Hardin had pulled completely off the road, this accident would never have happened, although some other accident may have occurred. The jury also heard testimony from the physician who performed the autopsy on Tammi Patterson, O'Brian Clary Smith, M.D. Dr. Smith testified that the cause of death was traumatic asphyxia, which means that "she died as a result of compressive forces or squeezing forces on her chest to the point where she was unable to breathe, and that inability to breathe led to her death." He stated that her body had pressure marks around her face, jaw, neck, and chest along with bruises and skin scrapes to her back, "indicating compressive forces or squeezing forces . . . applied to the back and to the front." He was of the opinion that Patterson was not killed instantly because an asphyxial death is not instantaneous. Dr. Smith noted that Patterson had a fractured rib, which caused bleeding and some inhalation of blood. He testified that Patterson's cuts and scrapes bled into the surrounding tissue, indicating that she had blood pressure for a period of time and did not die instantaneously. Moreover, Dr. Smith stated that, if Patterson squeezed Williams' hand, it would be an "indication of a volitional, voluntary-type action, which would require a degree of consciousness." He explained that when a person is denied oxygen, the person may experience "air hunger" and become anxious or desperate over the lack of oxygen and thrash around or become combative and eventually become unconscious. Dr. Smith testified that Tammi Patterson's first lumbar vertebra was fractured with the spinal cord cut at that point, and that this injury would have paralyzed both her legs. Extensive evidence was presented at trial about Tammi Patterson's earning capacity and financial affairs. Patterson's mother, Patricia Ann McDaniel ("McDaniel"), testified that Patterson attended approximately a year and one-half of college at Jackson State. After Patterson's divorce from Steve Patterson in 1991, she and her daughter Brittney moved in with her parents for a time. McDaniel stated that although her daughter was employed full time, she had difficulty meeting her expenses because of her low wages. The McDaniels helped their daughter financially, including car maintenance, paying her utilities when they were about to be cut off, paying half of Brittney's private school tuition, and buying her a house. McDaniel stated that her daughter attempted to pay the monthly mortgage payment in the form of rent to the McDaniels, but did not make the payments 6

every month. The McDaniels paid for their daughter's funeral expenses because her estate lacked the assets from which the bill could be paid. Thomas O. Depperschmidt ("Depperschmidt"), a professor of economics at the University of Memphis, testified on behalf of the Plaintiff on his expert opinion as to Tammi Patterson's lost earning capacity. In his calculations, Depperschmidt used her earnings of six dollars an hour, or $12,480 per year, from her job at the law firm where she worked and her fringe benefits, and included her employer's contribution to FICA at 7.65% of her salary and contribution of two hundred twenty dollars a month for medical insurance. Therefore, Depperschmidt based his opinion on a total yearly income of $16,075. He also reviewed her employment at The Eye Clinic where she worked from 1991 to 1993. For 1992, her earnings were $12,196.80. Depperschmidt subtracted out a personal maintenance deduction, or "the amount of expenditure that she would have made on herself" for necessary items, to come up with a net income figure to determine lost earning capacity. To determine the personal maintenance deduction, Depperschmidt used a Department of Labor publication to ascertain the average expenditures for a two-person household on food, clothing, shelter, transportation, and medical care. This publication gave the figure of 25.18% for a twoperson household earning $40,384 per year. Depperschmidt stated that he used this figure because he was not aware of any charts for a two-person household earning less than $40,384 per year. Using the 25.18% personal maintenance deduction figure, Depperschmidt calculated Patterson's lost wages from May 26, 1994, the date of the accident, to February 24, 1997, the date of the trial, at $33,087. To calculate future earnings, Depperschmidt multiplied the base salary of $16,075 by 36.5 years, or the work years to age seventy from the trial date, deducted the personal maintenance deduction, and discounted the figures to present value. Depperschmidt used the 25.18% personal maintenance deduction for 5.87 years until Brittney would reach eighteen years old. For the remaining years, Depperschmidt used a personal maintenance figure of 50.55% for a one-person household. Based on these figures, the future earnings until Brittney turned eighteen were $65,993, and future earnings after Brittney turned eighteen were $160,088, with total net future earnings of $226,081. On cross examination, Depperschmidt admitted that he did not consider any of Tammi Patterson's specific budgetary items in his calculations of the personal maintenance deduction, but used only the tables from the Department of Labor, which contained averages for two-person 7

households. The Teague Defendants made several objections to Depperschmidt's testimony. The first objection related to Depperschmidt's qualifications as an expert witness. The Teague Defendants declined the trial court's offer to voir dire the witness at that time, however, and chose instead to reserve the issue for cross examination. The Teague Defendants also asserted that there was no foundation for the income figures on which Depperschmidt was to testify. This objection was overruled by the trial court because of the Plaintiff's assurance that evidence of the deceased's income would be introduced subsequent to the expert's testimony. Kenneth Lynn Walker, an attorney at the law firm where Patterson worked at the time of her death, testified that she was a good worker with good potential and appeared to have a lot going for her. He acknowledged that the firm provided hospitalization insurance for Patterson. The law firm provided an Internal Revenue Service form showing Patterson's income. Her prior employer at The Eye Clinic testified that she was friendly and productive. The Eye Clinic also provided W-2 forms showing Patterson's income during her employment. During the trial, the Plaintiff took a voluntary nonsuit as to Defendants Williams and Haywood County. Plaintiff's counsel took a nonsuit as to Williams and Haywood County immediately after Williams' testimony, in the presence of the jury. The Defendants requested a mistrial based on the Plaintiff's counsel taking a mistrial in the jurors' presence. The trial court denied the mistrial, and entered an order of voluntary nonsuit. At the conclusion of the evidence, the jury returned a total verdict of $625,045.20 in favor of the Plaintiff. The jury allocated 0% of the fault to Tammi Patterson; 75% of the fault to the Teagues and Hardin; 25% of the fault to Cowley and Dunn; and 0% of the fault to Haywood County and Williams. Therefore, the trial court entered an order for judgment against Defendants Hardin and Fred and David Teague in the amount of $468,783.90. Hardin and the Teagues' motion for a new trial was denied. Hardin and the Teagues now appeal to this Court. On appeal, the Teague Defendants assert that: (1) The trial court erred in denying the motion for a new trial based on the misconduct by the Plaintiff's counsel in taking a voluntary nonsuit in the presence of the jury immediately after calling Williams as an adverse witness; (2) The trial court erred in failing to instruct the jury that the Plaintiff had previously filed suit against Dunn and Cowley and failing to allow the Defendants to introduce into evidence pleadings that the Plaintiff 8

filed against Dunn and Cowley; (3) The trial court erroneously allowed the deceased's funeral bill to be admitted into evidence even though the Plaintiff did not pay the bill; (4) The Plaintiff's expert was erroneously allowed to testify despite the fact that he relied on tables not reasonably relied on by experts in his field; (5) The amount of the verdict was contrary to the evidence; (6) The trial court erred in denying the Teague Defendants' motions for directed verdict and for a new trial; (7) The trial court abused its discretion in failing to use the Teague Defendants' jury verdict form; and (8) The trial court erred in allowing the jury to consider the fault of Williams and Haywood County because their liability is governed by the Tennessee Governmental Tort Liability Act and, under the Act, the trial court was required to determine their fault. Where, as here, a trial judge has approved a jury's verdict, the findings of fact by the jury are upheld if there is any material evidence to support the verdict. See Tenn. R. App. P. 13(d). Thus, absent a reversible error of law, a judgment on a jury verdict is set aside on appeal only if the record contains no material evidence to support the verdict. See Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988). The Teague Defendants argue first that the conduct of the Plaintiff's counsel in voluntarily nonsuiting Williams and Haywood County in the presence of the jury immediately after calling Williams as an adverse witness justified a new trial. The Teague Defendants concede that Rule 41 of the Tennessee Rules of Civil Procedure allows a party to take a voluntary nonsuit in open court. They argue, however, that the Plaintiff did not have the right to take a nonsuit in the presence of the jury because this action signaled to the jury that the Plaintiff believed Williams was not at fault. The Plaintiff responds that Rule 41 of the Tennessee Rules of Civil Procedure allows a voluntary nonsuit at any time before the jury retires and that the voluntary nonsuit was taken the morning after Williams finished testifying, not simply "subsequent to taking a break with the jury out" as the Teague Defendants suggest. The Plaintiff notes that the trial court would have had to inform the jury that Williams and Haywood County were no longer parties regardless of when the Plaintiff took the nonsuit, and that therefore no prejudice resulted from the nonsuit. In this case, the trial court made an affirmative finding that there was no prejudice from the voluntary nonsuit in the jury's presence. "A motion for a new trial based on counsel . . . misconduct is directed to the discretion of the trial court and its decision will not be reversed except for abuse of discretion." Budoff v. Holiday Inns, Inc., 732 F.2d 1523, 1525 (6th Cir. 1984). Rule 41 of the Tennessee Rules of Civil Procedure 9

provides that a party can take a nonsuit by "an oral notice of dismissal made in open court during the trial of a cause; or in jury trials at any time before the jury retires to consider its verdict." Tenn. R. Civ. P. 41.01(1). The rule does not restrict voluntary nonsuits in the presence of the jury. Moreover, the trial court in this case found that the nonsuit caused no prejudice against the Teague Defendants. We find no abuse of discretion in the trial court's denial of the Teague Defendants' motion for a new trial based on the Plaintiff's voluntary nonsuit in the presence of the jury. The trial court's denial of the Teague Defendants' motion for new trial on this basis is affirmed. The Teague Defendants next argue that the trial court erred in failing to instruct the jury that the Plaintiff had previously filed suit against Dunn and Cowley and in excluding from evidence the Plaintiff's complaint against Dunn and Cowley. The first request found in the record to introduce into evidence the Plaintiff's pleadings filed against Dunn and Cowley is in the Teague Defendants' motion for a new trial. In the hearing on the motion for new trial, the Teague Defendants argued that the jury is entitled to know a plaintiff's allegations against a defendant that is no longer a party to the suit. The Plaintiff cites Pankow v. Mitchell, 737 S.W.2d 293, 296 (Tenn. App. 1987), for the proposition that pleadings are only admissible if they are allegations of fact. The Plaintiff asserts that the complaint against Dunn and Cowley contained only conclusory allegations. The trial court denied the motion for new trial, finding that the pleadings were not substantive evidence and therefore had no evidentiary value. The trial court also concluded that the pleadings could not be used for impeachment of a party in this case because the Plaintiff did not testify about how the accident happened.

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In Tennessee, "factual statements contained in pleadings filed on behalf of a party may be considered as admissions." Pankow v. Mitchell, 737 S.W.2d 293, 296 (Tenn. App. 1987); see also First Tenn. Bank v. Mungan, 779 S.W.2d 798, 801 (Tenn. App. 1989). Such admissions are admissible against the party, making them "both as substantive evidence and for the purpose of impeachment." Pankow, 737 S.W.2d at 296. In Branch v. McCroskey, No. 03A01-9709-CV-00385, 1998 WL 47873, at *4 (Tenn. App. Feb. 5, 1998), the plaintiff sought to introduce into evidence allegations the defendant made in a cross claim against the cross defendant. The substance of these allegations was "[t]hat while in the sole possession, custody and control of the [cross defendant], one (1) of the [defendant's] two (2) horses suffered serious injuries which were proximately caused by the negligence of the [cross defendants]." Id. This Court held that the allegations in the cross claim were conclusory and not admissions of fact, and that therefore the trial court did not err in not allowing the plaintiff to cross examine the defendant about the allegations. See id. Other jurisdictions are divided on the admissibility of pleadings which contain claims of comparative negligence against defendants who have been dismissed or who have settled. Lytle v. Stearns, 830 P.2d 1197, 1206 (Kan. 1992). See Haynes v. Manning, 717 F. Supp. 730, 733 (D. Kan. 1989), aff'd in part and rev'd in part on other grounds, 917 F.2d 450 (10th Cir. 1990), (allowing use of plaintiff's prior pleadings against dismissed defendants based on the abandoned pleadings doctrine, which allows abandoned pleadings to be admitted as admissions by plaintiffs); Dreier v. Upjohn Co., 492 A.2d 164, 166-69 (Conn. 1985) (allowing introduction of original complaint, which was later amended, as an evidentiary admission, finding that pleading rules do not exempt parties from the requirement that they must have a reasonable belief in the truth of the matters asserted in a complaint). Cf. Mason v. Texaco, Inc., 129 F.R.D. 542, 543-47 (D. Kan. 1989), aff'd in part and remanded on other grounds, 948 F.2d 1546 (10th Cir. 1991), (allowing the use of an inconsistent pleading from a prior suit to show plaintiff's belief that other parties were negligent, although expressing "considerable reservations as to the probative value of the conclusory allegations" based on court's finding that "minimal probative value" does not in itself bar admission under exceptions to the hearsay rule).

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Other jurisdictions do not allow the use of such pleadings, reasoning that admissibility is incompatible with the liberal pleading and joinder rules in the rules of evidence, allowing alternative or even inconsistent allegations and pleadings. See Whatley v. Armstrong World Indus., Inc., 861 F.2d 837, 839 (5th Cir. 1988); Garman v. Griffen, 666 F.2d 1156, 1159-60 (8th Cir. 1981); Bargman v. Economics Lab., Inc., 537 N.E.2d 938, 944-45 (Ill. App. 1989); Lytle v. Stearns, 830 P.2d 1197, 1205-09 (Kan. 1992); Larion v. City of Detroit, 386 N.W.2d 199, 200-02 (Mich. App. 1986); Haderlie v. Sondgeroth, 866 P.2d 703, 713-14 (Wyo. 1993). The modern trend, appears to be to disallow the use of such pleadings as admissions: "The modern equivalent of the common law system is the use of alternative and hypothetical forms of statement of claims and defenses, regardless of consistency. It can readily be appreciated that pleadings of this nature are directed primarily to giving notice and lack the essential character of an admission. To allow them to operate as admissions would render their use ineffective and frustrate their underlying purpose. Hence the decisions with seeming unanimity deny them status as judicial admissions, and generally disallow them as evidential admissions." Lytle, 830 P.2d at 1207 (quoting McCormick on Evidence

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