As a personal injury lawyer in Cleveland, Ohio, one of the questions I am sometimes asked is whether a plaintiff can file a complaint alleging alternative theories of liability. In an Ohio personal injury case, the practice of pleading alternative theories of liability is clearly contemplated and permitted under Ohio law. Ohio Civil Rule 8(E)(2) provides in pertinent part:
A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds. Civ. R. 8(E)(2).
Ohio Courts have recognized that “Civ.R. 8(E) provides that parties may plead in the alternative” and that a party may state separate claims “regardless of consistency.’” Russi v. Brentlinger Enters., 10th Dist. No. 10AP-1143, 2011-Ohio-4764, ¶28. The mere fact that one alternative to liability may be subject to dismissal does not preclude a personal injury plaintiff from continuing to prosecute other viable claims. Ohio Ass’n of Pub. Sch. Emples. v. Sch. Emples. Ret. Sys. Bd., 10th Dist. No. 04AP-136, 2004-Ohio-7101, ¶42 (in the context of a 12(B)(6) motion to dismiss, a court “must examine each claim separately”). As such, if Ohio law allows for (and the plaintiff has duly plead) a certain viable cause of action, the Plaintiff must be permitted to continue on with said claim notwithstanding the status or viability of other causes of action mentioned in the Complaint. See Id.