Fill and Sign the Defendant Response 497426615 Form

IN THE ______________ COURT OF ______________ COUNTY STATE OF ________________       ) )       ) Petitioner/Plaintiff, ) ) ) NO.       Vs. ) )       ) Respondent/Defendant ) ) DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY COMES NOW, Defendant, __________________, by and through his attorneys of record herein, and files this his Response to Plaintiffs' Motion for Partial Summary Judgment on the Issue of Liability, and would show unto the Court the following: 1. __________________ admits that a hearing was held on the date alleged in the Municipal Court of ___________ concerning a traffic citation issued to __________________. __________________ denies the Plaintiffs' characterization in paragraph two of __________________ as the "defendant driver" and further denies the Plaintiffs' characterization of __________________ as a defendant in the present civil suit. Clearly he is not. 2. __________________ denies that the finding at the hearing in Municipal Court is entitled to the application of the doctrine of collateral estoppel in the case at bar. __________________ further denies that he is estopped from "relitigating" in this action the issue of liability, especially since __________________ has never "litigated" this issue in the first place. - 1 - 3. In _________ v.________ , ______________ (____. ____), the _____________ Supreme Court held that the first basic requirement essential for the operation of collateral estoppel in the State of ____________ is that the parties to the original action must be the same parties to the subsequent action. This rule, known as the "mutuality of parties rule" is rigidly and strictly applied in the State of _____________. See _________ v.________ , ______________ (____. ____). See also, _________ v.________ , ______________ (____. ____). Turning to the case at bar, __________________ was not a party to the earlier traffic court proceeding in which __________________ was charged and found guilty of a misdemeanor traffic violation. That action was not an action by the Plaintiffs’ against __________________, nor for that matter, was it an action between the Plaintiffs’ and __________________. The prior action was an action by the City of _____________ against __________________. The Plaintiffs’ were not a party and thus the doctrine of collateral estoppel has no application. 4. __________________ denies the allegations contained in paragraph four of the Plaintiffs' motion and would submit to the Court that issues of material fact exist concerning the elements of causation, damages and obviously liability. __________________ further submits that these are clearly questions of fact which require jury resolution. 5. __________________ denies that the exhibits itemized in paragraph five on page two of the Plaintiffs' motion support a grant of summary judgment in this case. 6. __________________ denies that the Plaintiffs' are entitled to partial summary judgment on the issue of liability based on the doctrine of negligence per se. There is ample evidence in the deposition of Plaintiff, __________________, that his negligence was the cause of the accident. See excerpts of __________________ 's deposition attached hereto and incorporated herein by reference as Exhibit "A". Additionally, the fact that a person may be guilty of negligence per Se does not, under ___________ State law, establish a party's liability - 2 - For example in _________ v.________ , ______________ (____. ____), the Court held that negligence per se constitutes evidence of a breach of duty, but does not constitute proximate cause or damages, nor does it establish the Defendant's liability. Id. 7. __________________ submits that the doctrine of collateral estoppel clearly has no application in the case at bar. __________________ further submits that there are genuine issues of material fact for a jury to decide which prohibits the entry of summary judgment at this time. __________________, therefore, respectfully requests the Court to deny the Plaintiffs' Motion for Partial Summary Judgment on the Issue of Liability. WHEREFORE, PREMISES CONSIDERED, Defendant, __________________, respectfully requests the Court to enter an Order denying the Plaintiffs' Motion for Partial Summary Judgment on the Issue of Liability. Respectfully submitted, Dated: Name:       Title:       Address: Address: City, State, Zip: Phone: Fax: E-Mail: Attorney No.: - 3 - CERTIFICATE OF SERVICE I, ______________________________, do hereby certify that I have this day mailed, U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing to __________________________________, at the following address; ___________________________________________________________________ THIS the ____ day of _____________, 20____. _________________________________ - 4 -