It is a basic principle of appellate procedure firmly adhered to by the court that unless the trial court has been given an opportunity to correct an alleged error, it will not be considered on review, unless it involves a plain error which deprives a litigant of fundamental rights.
Plaintiffs sought compensation for injuries plaintiff sustained when she fell on property rented by tenant but owned by defendant. Plaintiff's complaint acknowledged that the tenant rented the property from defendant, but the complaint only charged defendant with negligence. Apparently, the tenant had compensated plaintiffs, who executed a release document with the tenant. Defendant moved for summary judgment and alleged that the release of the tenant operated as a release of all tortfeasors. Defendant was granted summary judgment. On appeal, the court reversed.
Does the execution of a “Covenant Not to Proceed with Suit” release all the tort-feasors from their liabilities regardless of the presence of an expressed reservation in the instrument regarding others who may be liable to the injury?
Where a contract had the effect of releasing one joint tortfeasor while reserving the right to sue the others, who could be liable, it should not be treated otherwise. The expressed reservation in the instrument evinced a clear manifestation that plaintiffs were not receiving full compensation, and their right to bring an action against others who caused the damages could not be foreclosed.