## Facts

- Epstein, a pedestrian, was injured on a crowded public sidewalk in front of a retail store operated by M. Blumenthal & Co.
- Epstein sued the store and its employee, alleging the employee negligently came out of the store holding a ladder horizontally at about knee height, without looking or warning, and struck her as she passed.
- At trial, the evidence described a different sequence: the employee used the ladder to attend to a sign outside the store, then, while on the sidewalk, swung the ladder around to enter the store, striking Epstein during the swing.
- The trial court instructed the jury that liability could be found only if negligence and injury occurred as specifically alleged in the complaint, and that negligence could not be found on a different factual theory.
- After deliberations, the jury returned a defense verdict for both defendants; judgment entered accordingly.

## Issues

1. Whether a plaintiff may recover for negligence on a factual theory not fairly stated in the complaint when the proof at trial shows a materially different negligent act.
2. Whether the variance between the pleaded negligence (emerging from the doorway with the ladder) and the proof (swinging the ladder on the sidewalk) barred recovery absent amendment of the pleadings.

## Decision

- The Supreme Court of Connecticut affirmed the judgment for both defendants.
- The court held the variance was not a minor discrepancy but a substitution of a different negligent act from that alleged.
- Because the complaint was not amended to conform to the proof, the trial court properly confined the jury to the pleaded theory and properly instructed that recovery could not rest on the unpleaded theory.

## Legal Principles

- A plaintiff cannot recover on a cause of action not fairly stated in the complaint.
- Modern practice tolerates minor variances between pleading and proof, but not changes that substitute a materially different negligent act or transactional core.
- Pleadings define the bounds of recovery by giving defendants fair notice of the claim and delimiting the issues for trial.
- When proof develops a materially different theory of negligence, recovery is barred unless the plaintiff amends the complaint to match the evidence.

## Conclusion

Because the complaint alleged negligence in the employee’s manner of coming out of the store with the ladder, but the proof centered on negligent swinging of the ladder on the sidewalk, the plaintiff was not entitled to recover on the unpleaded theory; the defense verdict was properly sustained absent amendment.


Epstein v. M. Blumenthal & Co., 114 Conn. 195, 158 A. 234 (Conn. 1932)