23 Ill. App. 2d 189, 161 N.E.2d 720 (Ill. App. Ct. 1959)
McCormick v. Kopmann is a staple in Civil Procedure and Torts courses because it squarely addresses whether a plaintiff may plead inconsistent factual theories in the same lawsuit—particularly when critical facts are unknown due to the decedent's inability to testify and the events being within the defendants' knowledge.
May a plaintiff, lacking personal knowledge of the true facts, plead inconsistent factual theories in separate counts—such as negligence and dram shop liability—and may allegations in one alternative count be treated as binding judicial admissions that defeat another count?
Under the Illinois Civil Practice Act (parallel to modern liberal pleading rules), a party may plead in the alternative and assert inconsistent claims or defenses when in doubt about the facts. Allegations in one count are not binding judicial admissions in another count when pleaded alternatively or on information and belief. Judicial admissions must be clear, unequivocal, and deliberate factual concessions intended to remove an issue from dispute; alternative or hypothetical allegations do not qualify and may not be used as evidence or to compel an election that would prematurely foreclose a viable theory.
The appellate court held that the plaintiff properly pleaded inconsistent alternative theories. The dram shop allegations were not binding judicial admissions that could defeat the negligence claim or be used as evidence against the plaintiff on that count. The court reversed the adverse disposition that treated the dram shop pleadings as admissions barring the negligence claim and remanded for further proceedings on negligence; it otherwise left intact the proceedings as to the dram shop defendants.
McCormick is a core case on alternative and inconsistent pleadings and the limits of judicial admissions. For law students, it illustrates: (1) the permissibility and policy rationale behind alleging mutually exclusive facts when the pleader lacks knowledge; (2) the distinction between binding judicial admissions and non-binding alternative allegations; and (3) how courts manage the risk of inconsistent outcomes without sacrificing fairness. The case neatly bridges Civil Procedure (pleading practice) and Torts (wrongful death, dram shop liability), making it a frequent exam vehicle for spotting and resolving pleading and evidentiary-admission issues under modern rules like FRCP 8(d).