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: SErJ 2 ii 1991 

CLERK OFSUPXE~~~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 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 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 plaintiff8s counsel 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 

counse18s conception 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 counse18s unequivocal 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 counse18s admissions 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, he1 s more at fault, he1 s 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: 

-A 0 

/ ' fChief 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: 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 

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- -stice