Epstein (plaintiff) sued a store, M. Blumenthal & Co. (Blumenthal) (defendant), and one of its employees or agents, Maurice Rundbaken (defendant), for injuries she suffered when she was struck by a ladder Rundbaken was carrying. The factual basis for Epstein’s negligence claim, as set forth in her complaint, was that Rundbaken had imprudently exited the Blumenthal shop while holding the ladder horizontally, at knee level, and without looking or giving any warning to pedestrians in the busy thoroughfare outside the storefront. Rundbaken ran into Epstein with the ladder, causing her to fall. At trial, however, Epstein presented evidence that Rundbaken had been using the ladder to place a sign in front of the store. After descending the ladder, he carried it toward the entrance of the store and then swung it around in order to enter. Epstein was struck when Rundbaken swung the ladder. The trial court instructed the jury that they could only find in Epstein’s favor if her injury and the defendants’ negligence matched the allegations set forth in her complaint. The jury returned a verdict, which the court accepted as to Blumenthal but rejected as to Rundbaken. The court instructed the jury to reconsider the verdict, emphasizing that the jury could not find Rundbaken liable for negligence unless the jury’s finding of negligence matched the negligence alleged in Epstein’s complaint. The jury then returned a verdict in favor of both defendants. Epstein appealed.