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McKey v. Fairbairn

Citation. 345 F.2d 739, 120 U.S. App. D.C. 250; 1965 U.S. App. 5890
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Bloomberg Law

Brief Fact Summary.

After Agnes Littlejohn (Ms. Littlejohn) slipped on a wet spot on the floor of her apartment, she sued the owner of the apartment. The district judge issued a directed verdict against Ms. Littlejohn rather than allow her to amend the pretrial order, which would have changed her theory of the case.

Synopsis of Rule of Law.

A trial judge has the discretion to refuse to allow a party to change his legal theory during the case by amending the pretrial order.


Levi McKey rented a dwelling house from Kenneth Fairbairn, the agent for the Appellees, Euphemia L. Haynes and others (Appellees), on a month-to-month basis beginning in January 1958. Agnes Littlejohn, McKey’s mother-in-law, occupied a bedroom and other space on the second floor. In February 1958, Ms. Littlejohn noticed moisture on the floor of her bedroom, which she reported to the Appellees. Appellees agreed to eliminate the cause of the dampness. One week later, as the result of an all-night rain, Ms. Littlejohn’s floor became wet. She later slipped on the wet floor and fell, sustaining injuries. In April 1959, Ms. Littlejohn brought suit o recover damages from Appellees. She died in 1960, and the Appellant, Helen McKey (Appellant), her administratrix, was substituted as Appellant. Following the District Judge’s denial of Appellant’s motion to amend the pretrial order, which would have altered Appellant’s complaint so as to change her theory of the case, the district judge directed a verdict for Appellees.


Whether a court must allow a party to amend their complaint during the trial so as to change his theory of the case.


No. The Court of Appeals for the District of Columbia Circuit held that the trial judge did not err in directing a verdict for Appellees. The trial judge did not abuse his “justifiably large discretion” in refusing to permit Appellant to change her theory during the trial.


Judge Fahy dissented. He would have permitted Appellant to amend the pretrial order under Federal Rule of Civil Procedure Rule 16 because he felt that a greater manifest injustice would result to Appellant in precluding her from proceeding under the applicable law, than the injustice that would be felt by Appellee taken by surprise by the change.


Students should be aware that in addition to not allowing Appellant to change theories during the trial, the court felt a directed verdict was appropriate because Ms. Littlejohn was contributory negligent in causing the accident, as she was aware of the wetness and walked over it any

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