Burke v. Schaffner

683 N.E.2d 861 (1996)

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Nature of the Case

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Facts

P sued D when P was struck by a pickup truck driven by Martin Malone. P settled with Malone. The accident occurred during a party held for police officers. The pickup truck accelerated suddenly, causing P to be pinned between it and a parked car. P alleged that D, who was seated directly beside the driver, negligently stepped on the accelerator as she moved over on the front seat to make room for two other passengers getting into the truck. P filed a motion for summary judgment. Appended to the motion was an affidavit in which she stated, 'at no time while I was in the vehicle did my foot hit the accelerator ***.' P relied upon deposition testimony of Mr. Malone, which included his denial of fault and resulting conclusion that P must have stepped on the accelerator. The trial court denied the motion. The defense rested and called no witnesses at trial. The jury gave the verdict to D. P appealed. P contends that the doctrine of alternative liability mandates a finding that since D did not testify or otherwise present evidence, she failed to satisfy her burden to prove that she was not negligent.