§ 28 Exceptions to the General Rule of Issue Preclusion
Although
an issue is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment,
relitigation of the issue in a subsequent action between the parties is
not precluded in the following circumstances:
(1) The party
against whom preclusion is sought could not, as a matter of law, have
obtained review of the judgment in the initial action; or
(2)
The issue is one of law and (a) the two actions involve claims that are
substantially unrelated, or (b) a new determination is warranted in
order to take account of an intervening change in the applicable legal
context or otherwise to avoid inequitable administration of the laws; or
(3)
A new determination of the issue is warranted by differences in the
quality or extensiveness of the procedures followed in the two courts
or by factors relating to the allocation of jurisdiction between them;
or
(4) The party against whom preclusion is sought had a
significantly heavier burden of persuasion with respect to the issue in
the initial action than in the subsequent action; the burden has
shifted to his adversary; or the adversary has a significantly heavier
burden than he had in the first action; or
(5) There is a clear
and convincing need for a new determination of the issue (a) because of
the potential adverse impact of the determination on the public
interest or the interests of persons not themselves parties in the
initial action, (b) because it was not sufficiently foreseeable at the
time of the initial action that the issue would arise in the context of
a subsequent action, or (c) because the party sought to be precluded,
as a result of the conduct of his adversary or other special
circumstances, did not have an adequate opportunity or incentive to
obtain a full and fair adjudication in the initial action.
Illustrations:
Examples of 28(2)
2.
A brings an action against the municipality of B for tortious injury.
The court sustains B's defense of sovereign immunity and dismisses the
action. Several years later A brings a second action against B for an
unrelated tortious injury occurring after the dismissal. The judgment
in the first action is not conclusive on the question whether the
defense of sovereign immunity is available to B. Note: The doctrine of
stare decisis may lead the court to refuse to reconsider the question
of sovereign immunity.
3. A, a state agency, brings an action
against B to revoke B's wholesale liquor license on the ground that B
has violated the law governing the license by selling only to himself
as a retailer. The court grants B's motion to dismiss for failure to
state a claim, holding that the conduct charged does not violate the
law. In a subsequent action by A against C, a higher court holds that
identical conduct by C is ground for the revocation of C's wholesale
liquor license. In a second action against B for revocation of B's
license, A is not precluded from asserting that since the first
dismissal, B has continued, as before, to sell only to himself as a
retailer.
Example of 28(4)
10. A brings an action against
B for injuries incurred in an automobile accident involving cars driven
by A and B. Under the governing law, A has the burden of proving his
freedom from contributory negligence. Verdict and judgment are given
for B on the basis that A has not sustained that burden. In a
subsequent action by B against A for injuries incurred in the same
accident, the issue of A's negligence (on which B now has the burden of
persuasion) is not concluded by the first judgment.