No. 90-579
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
JONATHAN R. KOHNE,
Plaintiff and Appellant,
ROY YOST, a minor, and ROY YOST, SR.,
as guardian ad litem for
ROY YOST, a minor,
Defendant and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Butte-Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James P. Harrington, Attorney at Law,
Butte, Montana
For Respondent:
Gary L. Walton, Poore, Roth & Robinson,
Butte, Montana
Submitted on Briefs: June 27, 1991
SErJ 2 i 1991
i Decided: August 25, l g g l
Filed:
CLERK O F S U P X E ~ ~ ~ E
COUR, j*
S'TA'rE OF IYICINTAIU;;
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant, Jonathan R. Kohne, appeals from an order of the
District Court, Second Judicial District, Silver Bow County,
denying his motions for New Trial, or to Amend Judgment or to Set
Aside Verdict and Judgment and for Judgment Not Withstanding
Verdict.
We reverse.
Appellant raises several issues. However, we hold the
following issue to be dispositive:
Whether statements made by defense counsel in closing argument
admitting negligence constitute a judicial admission dispositive
on the issue of negligence.
On June 17, 1988, appellant Jon Kohne, age 21, and respondent
Roy Yost, Jr., age 13, engaged in a game of combat with B.B. guns.
Initially, Kohne and Yost were to help Kohnelsmother move to a new
residence. Bored with the task, Kohne and Yost decided to shoot
B.B. I at some pop cans, an old jeep battery, and windows.
s The
testimony is unclear as to who suggested the llcombatlt
game between
the two participants. However, they did establish three rules.
They were not to pump the B. B. guns more than five times, they were
not to shoot above the shoulders, and they were to say llouchll
when
they were hit by a B.B. The game ensued for several minutes
outside the home until Kohnets sister arrived.
The combatants stopped playing and demonstrated their bruises
to Kohnels sister. She scolded her brother for playing with B.B.
guns instead of packing boxes. After a few minutes, they went
inside the house to the living room. Yost walked to the back
bedroom, while Kohne and his sister continued to argue in the
living room and kitchen.
After a few more minutes, Kohne walked through the kitchen
towards the back bedroom of the house, where Yost was hiding with
his B.B. gun. Kohne and his sister testified that as he approached
the back bedroom, he was carrying boxes. Yost testified Kohne was
carrying a B.B. gun. Yost was standing next to the bedroom door
leading to the outside of the residence. John Kohne was standing
next to the doorway leading from the kitchen to the bedroom. He
saw Yost pointing the B.B. gun at him. The B.B. gun went off and
shot Kohne in the lens of his left eye. Yost immediately
apologized and stated he thought the safety was on. Kohne suffered
extensive injuries to the eye, including permanent loss of the lens
and permanent injury to the cornea and iris, as well as other
physical and psychological damage.
Defense counsel originally claimed that Yost was firing in
self-defense and that Kohne's intentional and malicious conduct
constituted battery. Plaintiff was granted a directed verdict on
defendant's counterclaim. At the close of all the evidence,
defense counsel was allowed to amend his counterclaim to a
negligence and comparative negligence theory.
During closing argument defense counsel made the following
admissions:
It's our position that your decision on Roy Yost's
negligence depends upon whether you find that Roy Yost
was more negligent on the 17th of June than John Kohne.
(Transcript, p. 473.)
I submit to you that both of them are negligent. You're
not going to have a lot of trouble with that very first
question of negligence because, you bet, playing the game
in and of itself, they were negligent. ...
(Transcript, pp. 478-479.)
[Tlhrow both sides of the lawsuit out, no liability,
none. And the way you get there is you find that John
Kohne being an adult, 21 years old, he knew better, he
should have known better and the moment that the game
started, he should have stopped it. And so when the game
starts, he's more at fault, he's not equally at fault,
he's more. He's 55, 60, 75 percent at fault for this
game because when the game started and when the game
continued, John Kohne continued it.
(Transcript, p. 492.)
He was at fault because he played the game too, but he's
the 13-year-old boy and this man that started it all, he
was more at fault.
(Transcript, p. 497.)
The jury found no negligence on the part of either the defendant
or plaintiff. Plaintiff's counsel moved for judgment notwithstanding
the verdict. The District Court denied the motion. Plaintiff's
counsel timely filed motions for a New Trial, or to Amend Judgment
or to Set Aside Verdict and Judgment and for Judgment Not
Withstanding Verdict on the basis, among other issues, that there was
insufficient evidence to support the verdict, and that defense
counsel made admissions in his closing argument that defendant was
negligent. In a memorandum and order dated August 14, 1990, the
District Court denied plaintiff's motions. It is from this order
that plaintiff appeals.
Previously, we have held that counsel's admissions are binding
upon the client.
A party may appear in person or by an attorney; but, when
he appears by attorney, the latter while acting as such
has control and management of the case, and his sayings
and doings in the presence of the court concerning the
trial of the cause are the same as though said and done
by the party himself.
State ex rel. Eden v. District Court (1939), 109 Mont. 263, 268, 95
Judicial admissions are important because they have the effect
of a confessory pleading. 9 Wigmore, Evidence, 5 2588 (Chadbourn
rev. 1981). A judicial admission is an express waiver made in court
by a party or his attorney "conceding for the purposes of the trial
the truth of some alleged fact." Wigmore at 5 2588. The main
characteristic of a judicial admission is the conclusive effect upon
the party making the admission. No further evidence can be
introduced to prove, disprove, or contradict the admitted fact.
Wigmore at 5 2590.
Judicial admissions may occur at any point duringthe litigation
process. They may arise during discovery, pleadings, opening
statements, direct and cross-examination, as well as closing
arguments. Lowe v. Kang (111.App.Ct. 1988), 521 N.E.2d 1245, 1248.
The district court must focus upon the statement itself, rather than
on a certain stage of the litigation proceeding. Plaintiff's
counsel, at the time of hearing on his motion for a new trial, asked
the court to rule that the admission in the final argument by defense
counsel was a judicial admission of negligence. We note that a
preferable procedure would have been for plaintiff8scounsel to call
that admission to the attention of the court and request the court
to give modified instructions to the jury to reflect the admission
of negligence.
To determine whether a statement is a judicial admission depends
upon the circumstances of each case. Lowe, 521 N.E.2d at 1248. For
a judicial admission to be binding, it must be an unequivocal
statement of fact. Childs v. Franco (E.D.Penn. 1983), 563 F.Supp.
290, 292. The District Court should not consider statements of
counse18sconception of the legal theories of the case to be binding.
Childs, 563 F.Supp. at 292.
Defense counsel contends he was only arguing an alternative
legal theory and merely suggesting that the defendant was negligent.
Defense counse18sunequivocal statements, taken in full context with
the rest of his closing argument, constituted judicial admissions on
the issue of negligence binding his client. It is obvious from the
record, that defense counsel changed tactics in order to win a
favorable comparative negligence verdict. He amended his
counterclaim to establish negligence and comparative negligence
theories. Defense counse18sadmissions reflect this change in legal
position.
It's our position that your decision on Roy Yost8s
negligence depends upon whether you find that Roy Yost
was more negligent on the 17th of June than John Kohne.
(Transcript, p. 473.)
I submit to you that both of them are nesligent. You are
not going to have a lot of trouble with that very first
question of negligence, because, you bet, plavina the
same in and of itself they were nealiqent. ...
(Transcript, pp. 478-479, emphasis added.)
And so when the game starts, he1s more at fault, he1s not
eauallv at fault, he's more. He's 55, 60, 75 percent at
fault for this game because when the game started and
when the game continued, John Kohne continued it.
(Transcript, p. 492, emphasis added.)
He was at fault because he plaved the same too, but he's
the 13-year-old boy and this man that started it all, he
was more at fault.
(Transcript, p. 497, emphasis added.)
Other than at the beginning of his closing argument, defense
counsel failed to preface these admissions to the jury that the
statements were only suggestions. Moreover, several times throughout
the closing argument, defense counsel argues his client is negligent
at least to some degree. Other uncontroverted evidence fails to
support the jury's verdict. Yost pointed the gun at Kohne. Yost
admitted that he thought that the safety was on. Yost had
considerable training in the safe use of guns by his father and a
hunter safety program and he admitted he did not follow that training
when accidentally shooting Kohne.
We remand for a new trial.
We concur: 0
-A
/ -
f
'
Chief Justice
Justice Fred J. Weber dissents as follows:
The majority concluded that the attorney's unequivocal
statements in closing argument constituted a judicial admission of
negligence by the defendant. As a result, the majority concluded
that plaintiff deserved a new trial because of the absence of
substantial evidence demonstrating there was no negligence on the
part of the defendant.
I will first review the following elements of the trial in the
order in which they actually occurred: the pertinent instruction
to the jury; the closing argument by defense counsel, which the
majority concludes is an admission of negligence; and the jury
verdict.
In this case Court's Instruction No. 1 provided:
You are the sole and exclusive iudses of the facts.
You must consider and weigh the testimony of all
witnesses. You alone are to determine whether to believe
any witnesses and the extent to which any witness should
be believed. It is your responsibility to resolve any
conflicts in the testimony which may arise during the
course of the trial.
Your determination of the facts in this case must
be based upon the evidence regardless of who presented
it. Arsuments, statements and remarks of attorneys are
not evidence, and YOU should disresard any arsument which
is not su~ported bv evidence. You have a right to
consider all the evidence in the light of your own
general knowledge, experience and common sense, and to
take into account whether any particular evidence seems
reasonable and probable. (Emphasis supplied.)
I have concluded that it is necessary to set forth a more extended
portion of the defense attorney's argument which the majority has
concluded constitutes an admission of negligence. The following
is taken from the transcript commencing at page 471:
Ladies and gentlemen, as you know, the closing
argument is the time when the lawyers want to direct your
attention to the evidence that's been admitted in this
trial so that you understand the theories of their cases.
I hope that in this time that I have with you now that
we have the chance to try and figure out what happened
on June 17th, 1988.
One thing I want you to keep in mind, however, is
that as jurors in this case your function is to sift
through all the facts in evidence that you've heard to
this time and you make the decision as to what the facts
were. I'm going to make some suggestions to you this
morning about the facts based on the evidence that came
in. ...
Initially, let's talk about liability. Liability
is what you must find before you ever get to the damages.
You've seen Mr. Harrington and Mr. Kohne's large chart
here where they've asked you for damages, but before you
ever get to that question, you have to decide that Roy
Yost did something wrong that day, that he was negligent.
We don't dispute and we have never disputed that John
Kohne was hurt on June 17th. ... But what we're telling
you is before you get to that point of deciding damages,
you have to first decide that Roy Yost is liable as a
matter of law. And that's going to be based on the facts
as you determine them and the law that the Court gave you
this morning.
It's our position that your decision on Roy Yost's
negligence depends upon whether you find that Roy Yost
was more negligent on the 17th of June than John Kohne.
Let's look at those facts. We have a 21-year-old man
invites a 13-year-old boy, a boy who has turned 13 six
days before the accident, invites him over to his house -
- or to his mother's former home to help him move. . .
. Well, then if it's wrong for Roy Yost at 13 to shoot
guns at someone else, it's wrong for John Kohne. . . .
So, the question becomes was Roy negligent for
playing the game? Was John negligent for playing the
game? I submit to you the Court instructed you on the
definition of negligence. Negligence is the failure to
use reasonable care. I submit to you that both of them
are negligent. You're not going to have a lot of trouble
with that very first question of negligence because you
bet, playing the game in and of itself, they were
negligent, but did that negligence proximately cause some
injury? I just think that two friends shooting at each
other is unreasonable. .. .
Roy admitted under questioning by Mr. Harrington
very clearly, '1 did not intend to hurt him." And I'm
'
sure he didn't. He also said in his testimony, "1 didn't
even aim the gun.'' Is that negligence when the game is
being played? Is that negligence? I submit to you that
it's not. He didn't aim the gun because when he stuck
his head out from behind the door, what does he see?
John at the doorway with the pistol, it's in his hand.
How long is he out there, a minute, a second? Does he
have time to know if it's actually pointed at him? Who
knows. That Is a fraction of a second that we' 11 probably
never be able to recreate. But he jumped out from behind
the door, stuck the gun out and fired it. And I think
that just like the rest of the game, Roy didn't mean to
hurt John when John got hurt, just like John didn't mean
to hurt Roy when he shot Roy in the chest and the
shoulder.
And we respectfully ask you to go into the jury room,
pick your foreman and decide there was no fault, greater
fault, on Roy Yost. He was at fault because he played
the game too, but he's the 13-year-old boy and this man
that started it all, he was more at fault. Thank you.
The Special Verdict as set forth in the court's judgment is
as follows:
1. Do you find that the defendant was negligent on June
17, 1988? ANSWER: I'Nov
6. Do you find that the plaintiff was negligent on June
17, 1988? ANSWER: w N ~ l r
Keeping in mind the court's instruction that the jurors are
the sole and exclusive judges of the facts and that arguments and
statements of attorneys are not evidence and should be disregarded
if not supported by the evidence, I will discuss the statements by
counsel in the course of argument. I believe it essential to keep
in mind that counsel did not suggest that only the defendant was
negligent. His statements essentially set forth his contention
that both the plaintiff and the defendant were negligent in playing
the game of shooting BB guns at each other. I don't see how that
can be construed as an admission of negligence only on the part of
the defendant. In addition, the majority has not considered the
further conflict in the facts as presented by both sides - the
plaintiff presented evidence to establish that the game of BB gun
shooting was actually ended. If the jury accepted the plaintiff's
evidence, then the negligence in playing the game, as admitted, is
irrelevant to the question of whether or not the defendant
negligently shot the plaintiff after the game had terminated. The
key is that the statements by counsel cannot be construed as an
admission that the defendant's negligence in playing the BB gun
game was the proximate cause of the plaintiff's injuries.
I further contend that the holding in the case of Brown by
Brown v. Markve (1985), 216 Mont. 145, 700 P.2d 602, is
contradictory to the majority holding in this case. In part the
Court stated in Brown:
The court then concluded that this argument to the jury
had the legal effect of an admission against interest
which set the lower limits of the verdict at $30,000.
No citation of legal authority is cited for that
conclusion. In addition, the conclusion of the trial
court contradicts its own Instruction No. 1 which in part
stated as follows:
Statements of counsel are not to be regard by
you as evidence and you will disregard any
such statements which are not supported by the
evidence received upon this trial.
By his argument, the defense counsel obviously sought to
encourage the jury to reach a lower verdict because of
the presence of an admission of liability on the part of
his client. However, that suggestion cannot be classed
as evidence or an admission against interest which set
a floor of $30,000 below which the jury could not go.
The jury remained the finder of fact with the right to
set the damages at $25,000 or such other figure as the
jurors might conclude to be appropriate under the
evidence.
Brown, 216 Mont. at 147, 700 P.2d at 603. The instruction in the
present case emphasizing that the jury is the trier of fact and is
to disregard the statements of counsel is even broader than the
above quoted instruction from Brown.
The majority relies on Brown to conclude there was no
substantial evidence to support the jury's verdict. I fail to see
how Brown supports the majority opinion. I fail to see how the
admission by defense counsel that both plaintiff and defendant were
negligent in playing the BB gun game negatives the capacity of the
jury to reach its own decision as to the negligence of both
participants, particularly in view of the right on the part of the
jury to conclude the game had previously ended. As previously set
forth, defense counsel prefaced his so-called admissions by
explaining to the jury that they were the ultimate fact finders and
stating that his arguments were suggestions.
I conclude that the effect of the majority opinion in its
conclusion that the argument of defense counsel constitutes an
admission which is binding, directly contradicts the law of the
case, Court's Instruction No. 1, and is inaccurate when all of the
closing argument is considered. I would affirm the conclusion of
the District Court upholding the verdict of the jury and denying
plaintiff's motion for a new trial.
.J
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