Green, the trial court entered judgment following jury trial without application
of comparative fault. The jury rendered a verdict finding that the defendants
concealed and conspired to conceal information from the plaintiff regarding
the risks, consequences, and addictive nature of smoking cigarettes. Despite
the jury apportioning fifty-five percent fault to Philip Morris and twenty-five
percent fault to Liggett, the trial court entered judgment against the
defendants in the full amount of the damages awarded, jointly and severally.
On appeal, the Fifth District ruled that the damages should have been apportioned
among the parties based upon comparative fault, based on the circumstances
of the case. The court found that throughout the trial, including during
opening and closing, the plaintiff repeatedly referenced the plaintiff’s
acceptance of his portion of responsibility for his injuries and illness.
The court stated, “It is a general rule that parties will be held
to the theories upon which they secure action by the court, and in pursuance
of the rule that a party may not take inconsistent positions in a litigation.”
One who assumes a position or theory in a case is judicially estopped
in a later phase of that same case or in another case from asserting any
other or inconsistent position toward the same parties and subject matter.
The doctrine of estoppel prevents a person form unfairly asserting inconsistent
The Fifth District found that the plaintiff made statements during trial
that invited the jury to find shared responsibility, and suggested to
the jury that the plaintiff would accept some measure of fault with respect
to the claims. In fact, the plaintiff explicitly stated that comparative
fault would be taken into consideration by the trial court. Accordingly,
under the circumstances of the case, the Fifth District ruled that the
trial court erred by not applying comparative fault.