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 Decided: August 25, lggl Filed: 

### SErJ2ii

### 1991

CLERKOFSUPXE~~~E COUR, j* S'TA'rEOF 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 statementsmadeby defense counsel in closingargument 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 Yostwere to help Kohnels mother move to a new residence. Bored with the task, Kohne and Yost decided to shoot B.B. 

### Is at some pop cans, an old jeep battery, and windows. The testimony isunclear as towho suggested the llcombatlt game between the two participants. However, they did establish three rules. Theywere not topump the B.B. guns more than five times, theywere not to shoot above the shoulders,and theywere to say llouchll when they were hit by a B.B. The game ensued for several minutes outside the home until Kohnetssister arrived. The combatants stopped playing and demonstrated theirbruises to Kohnelssister. She scolded her brother for playing with B.B. guns instead of packing boxes. After a few minutes, they wentinside 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 ashe approached the back bedroom, he was carryingboxes. 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 statedhe thought the safetywas on. Kohne suffered extensive injuriesto the eye, includingpermanent lossof 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. Plaintiffwas 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 wasmore negligent on the 17th of June than John Kohne. (Transcript,p. 473.) I submit to you thatboth of them are negligent. You're not going to have a lot of trouble with that very first questionofnegligence because,youbet,playing thegame 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 shouldhave stopped it. And sowhen thegame 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.) Hewas at faultbecause heplayed the game too, but he's the 13-year-old boy and thisman that started it all,he was more at fault. (Transcript,p. 

### 497.) The jury foundnonegligence on thepart of either thedefendant

orplaintiff. Plaintiff'scounselmoved for judgmentnotwithstanding 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 onthebasis,among other issues,that therewas 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, theDistrict 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 partymay appear inperson orby 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 effectupon the party making the admission. No further evidence can be introduced to prove, disprove, or contradict the admitted fact. Wigmore at 5 2590. Judicialadmissionsmay occuratanypointduringthe 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), 521N.E.2d 1245, 1248. Thedistrict courtmust 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,askedthe courttorule that the admission inthe final argumentby defense counsel was a judicial admission of negligence. We note that a preferable procedurewould havebeen forplaintiff8scounsel 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. Todetermine whethera statement is a judicial admission depends upon the circumstances of each case. Lowe, 521N.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 thecase tobe binding. Childs, 563 F.Supp. at 292. Defense counsel contends he was only arguing an alternative legal theory and merely suggesting that thedefendantwas negligent. Defense counse18s unequivocal statements,taken in full contextwith the rest ofhis 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 wasmore negligent on the 17th of June than John Kohne. (Transcript,p. 473.)

### I

### submit toyou thatboth of them arenesligent. 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 sowhen thegame starts,he1 s more at fault,he1 snot eauallv at fault,he's more. He's 55, 60,

### 75percent at fault for this game because when the game started and when the game continued, John Kohne continued it. (Transcript,p. 492, emphasis added.) Hewas at fault because he plaved the same too,but he's the 13-year-oldboy and thisman 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 statementswereonly suggestions. Moreover, severaltimesthroughout the closing argument, defense counsel argueshis client isnegligent 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 safetyprogram andheadmittedhe did not followthattraining when accidentally shooting Kohne. We remand for a new trial.We concur: 0 

# -A

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# fChief JusticeJustice 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. Iwill first reviewthe followingelements 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 InstructionNo. 1provided: You are the sole and exclusive iudses of the facts. You must consider and weigh the testimony of all witnesses. You aloneareto determine whether tobelieve any witnesses and the extent towhich anywitness 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, statementsand remarks of attorneys are not evidence,and YOU shoulddisresardany arsumentwhich is not su~portedbv 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 themajority 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 thetime when the lawyerswant todirectyour attention to the evidence that's been admitted in this trial sothatyouunderstand 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 youmake the decision as towhat 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 youmust findbefore you everget to thedamages. You've seen Mr. Harrington and Mr. Kohne's large chart herewhere they've asked you for damages, but before you ever get to that question, you have to decide that Roy Yostdid somethingwrong thatday,thathewasnegligent. We don't dispute and we have never disputed that John Kohnewashurt onJune 17th. 

# . . .But whatwe're telling you isbefore you get to thatpoint of deciding damages, you have to first decide that Roy Yost is liable as a matter of law. And that'sgoing tobe based on the facts as youdetermine them and the law that the Court gaveyou 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 daysbefore theaccident,inviteshim over to hishouse

## - - 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 arenegligent. You'renot going tohave 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 thatnegligence 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 surehe didn't. He also said inhis testimony, "1 didn't even aim the gun.'' Is that negligence when the game is being played? Isthat 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. ThatIs a fractionof a second thatwe'11probably 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 Johnwhen 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. Doyou find that theplaintiff was negligent on June 17, 1988? ANSWER: wN~lr Keeping in mind the court's instruction that the jurors are the sole and exclusive judges of the facts and that arguments and statementsof attorneys are not evidence and should be disregarded if not supported by the evidence, I will discuss the statementsby counsel in the course of argument. 

### Ibelieve it essential to keep in mind that counsel did not suggest that only the defendant was negligent. His statements essentially set forth his contention thatboth theplaintiff and thedefendantwere negligent inplayingthe game of shooting BB guns at each other. I don't see how that can be construed as an admission of negligence only on thepart 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 shootingwas actually ended. If the jury accepted theplaintiff's evidence, then the negligence inplaying the game, as admitted, is irrelevant to the question of whether or not the defendant negligently shot theplaintiff 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 InstructionNo. 1which inpart 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 supportedby 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 thepresence of an admission of liability on thepart 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 admissionby defense counsel thatbothplaintiff and defendantwere negligent inplaying the BB gun game negatives the capacity of the jury to reach its own decision as to the negligence of both participants, particularly inview of the right on thepart of the jury to conclude the game had previously ended. As previously set forth, defense counsel prefaced his so-called admissions by explaining tothe jurythat theywere theultimate fact findersand stating that his argumentswere 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 InstructionNo. 1,and is inaccurate when all of the closing argument is considered. Iwould affirm the conclusion of the District Court upholding the verdict of the jury and denying plaintiff's motion for a new trial.



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