Advanced Trial LawPersonal Injury
Lawyer

Can you submit a case to a jury on two different legal
theories?

Q: Do you have to elect your remedy before going to the jury?

A: Sometimes

Typically, you do have to elect your remedy and submit one legal theory for each claim of damages before going to a
jury. Courts don’t want double recovery or inconsistent verdicts.

However, a plaintiff may submit two different legal theories for the same injury so long as: 1) the theories are not
factually or legally inconsistent, i.e. proof of one theory does not disprove the other; and 2) the theories do not
permit the jury to award a double recovery. Whittom v. Alexander-Richardson
Partnership, et al., 851 S.W.2d 504 (Mo. banc 1993).

In a case we tried two weeks ago, we submitted the case on two theories: 1) that the psychiatrist Dr.
Mattingly committed medical negligence which resulted in the death of his patient and others, and 2) a legal theory
under famous cases Tarasoff
v. Regents of Univ. of Cal., 17 Cal.3d 425 (Cal. 1976), and Bradley
v. Ray, 904 S.W.2d 302 (Mo.App. W.D. 1995), where because Dr. Mattingly knew or should have known of the risk of
danger his patient presented to others, he was negligent in failing to warn them of that danger.

Because these two theories are not inconsistent (proof of medical negligence would not disprove failure to warn, and
vice versa), and because we were only seeking one remedy (wrongful death damages), we were able to submit both legal
theories to the jury.

An illustration in MAI guided us. Illustration 35.15 shows how you can submit two verdict directors and one verdict form
to avoid multiple recoveries for the same injury. So, you structure your verdict directors so that the jury can elect
two different liability theories but just have one amount of damages to assess.

We effectively did this by organizing our verdict form in three parts. Part I asked the jury to determine liability only
on our medical negligence claim. Part II asked the jury to determine liability only on our failure to warn claim. Part
III required the jury to determine the total amount of damages, which would be the same for either (or both!) claims.

The jury was free to elect one or both theories of liability. Email me if you’d like a set of the instructions we used.

Submitting two different legal theories can give the plaintiff an advantage, because some jurors may resonate more with
one theory than the other. The way we structured our verdict form alleviated the concern of a double recovery (which
would lead to possible error), and also enabled us to determine which theory(ies) the jury relied on in the event of an
appeal.

Other examples where you can submit two theories to obtain one recovery include:

• Palmer v. Hobart Corp., 849 S.W.2d 135 (Mo. Ct. App. 1993) (plaintiff whose hand became lodged in meat grinder
  was permitted to submit jury instructions for both design defect patterned off MAI 25.04 and failure to warn
  patterned off of MAI 25.05);
• Davis v. Cleary Bldg. Corp., 143 S.W.3d 659, 669 (Mo. Ct. App. 2004) (plaintiffs’ claims for breach of contract
  and fraudulent misrepresentation were not inconsistent legal theories, and as such, did not require election of
  remedies or election of recovery);
• Host v. BNSF Railway Co., 460 S.W.3d 87 (Mo.App. WD 2015) (liability under FELA could be based on alternative
  theories of general negligence and negligence per se due to violation of the Locomotive Inspection Act);
• Whittom v. Alexander-Richardson Partnership, et al., 851 S.W.2d 504 (Mo. banc 1993) (plaintiffs were improperly
  required to elect between their theories of prescriptive easement and common-law dedication).

In contrast, examples where you cannot submit two theories:

• Oliver v. Ford Motor Credit Co. LLC, 437 S.W.3d 352, 363 (Mo. Ct. App. 2014) (“Under Missouri law, a party must
  choose between a legal remedy for money damages and an equitable remedy for rescission of the contract but not
  both.”);
• Trident Grp., LLC v. Mississippi Valley Roofing, Inc., 279 S.W.3d 192, 198 (error in awarding damages for both
  breach of contract and professional negligence in installing roofing system due to double recovery).

Gary Burger

Founder | Injury Attorney
Gary Burger has dedicated his career to standing up against bullies. The founder and principal attorney of Burger Law | St. Louis Personal Injury Lawyer has helped hundreds of Missouri and Illinois individuals and families recover th …
Years of experience: 30 years
Location: St. Louis, MO

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