I concurin the sound reasoning and result reached by my brethren but would reason to the same conclusion by a different route. In my opinion it is not necessary to reach the res ipsa loquitur issue, because PSA is precluded from appealing the issue of liability in this case. Counsel for PSA made an admission of liability in open court before the jury after it had affirmed that position in chambers to the court. PSA cannot renounce those significant acts here.1
The majority would distinguish Horn v. Atchison T. & S. F. Ry. Co. (1964) 61 Cal.2d 602 [39 Cal.Rptr. 721, 394 P.2d 561]; I can find little difference between the statement made by counsel in this case and the statement made by counsel in Horn: “I am going to ask you to pay him some money. I will, however, contend now and throughout the case and in my final argument, legally we don’t owe the plaintiff a dime. Nevertheless, we want you to give him some money.” The Supreme Court found “Defense counsel’s unequivocal invitations to a plaintiff’s verdict can only be construed, in legal significance, as a concession of liability ... in spite of earlier formal denials of such liability.” (Horn at p. 605.) In Bank of America v. Lamb Finance Co. (1956) 145 Cal.App.2d 702, 708 [303 P.2d 86], the Court of Appeal said “In the absence of fraud, the admissions of an attorney in open court are binding upon the client. [Citations.]”
The majority states “the admission here lacks the gravity of a complete relinquishment of rights on the issue of liability, particularly in light of the inappropriateness of a denial of liability at a trial for damages and PSA counsel’s refusal to abandon the appeal.” (Ante, p. 414.) Considering the pending appeal on the summary judgment motion, any comment on liability was surplusage in the damages trial.
PSA seeks the best of all worlds. By an open court admission of liability, PSA put its most sympathetic face before the jury. At the appellate level, it would deny the admission and seek to avoid liability entirely. It is a fair inference these admissions were made as calculated trial tactics designed to keep the damage award as low as possible. The doctrine of estoppel precludes PSA from asserting this contention on *720appeal. As a general rule a party relying on a specific ground of defense in the trial court will not be permitted to assume an inconsistent position in the appellate court (28 Am.Jur.2d, Estoppel & Waiver, § 72, p. 703, & cases cited), and a criminal defendant may not mislead the court and the jury by taking one position at trial and another position on appeal. (People v. Pijal (1973) 33 Cal.App.3d 682, 697 [109 Cal.Rptr. 230]; People v. Peters (1950) 96 Cal.App.2d 671, 677 [216 P.2d 145].) To adopt a different rule in this a civil case confuses and unsettles the law, unfairly disadvantages the plaintiffs. It encourages a capricious self-advantageous change in position. The damage award judgment was determined, presumably based on counsel’s admission, proof and argument. PSA should not be allowed to reap the benefits from this judgment and yet attack it on appeal. (Turner v. Markham (1907) 152 Cal. 246, 247 [92 P. 485.]; 6 Witkin, Cal. Procedure (2d ed. 1971) § 136, p. 4131.)
A petition for a rehearing was denied July 27, 1982, and appellant’s petition for a hearing by the Supreme Court was denied September 30, 1982. Kaus, J., did not participate therein.
The trial court stated “On the record we have had an admission of liability which is a statement to the jury, defense admits liability?” Counsel for PSA returned to the courtroom and stated in front of the jury “at the end, you will have to make an award to this lady. There is no dispute as to that, and the award will be fair and reasonable to Mrs. Irwin and her family, and fair and reasonable to my client.” (Italics added.)