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04/07/88 Norma M. Lowe, v. Steven Kang

April 7, 1988

NORMA M. LOWE, PLAINTIFF-APPELLEE

v.

STEVEN KANG, DEFENDANT-APPELLANT (G. S. SUMMIT, INC., ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1245, 167 Ill. App. 3d 772, 118 Ill. Dec. 552 1988.IL.497

Appeal from the Circuit Court of Du Page County; the Hon. Helen C. Kinney, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Stephen Kang, appeals from the judgment of the circuit court of Du Page County, entered upon a jury verdict, in favor of plaintiff, Norma Lowe, in the amount of $115,005 for injuries sustained when plaintiff was struck by a car driven by defendant. Plaintiff suffered two broken legs and a broken kneecap. Plaintiff sued under a negligence theory. Defendant denied he was negligent and also pleaded the defense of comparative negligence.

The accident between the parties occurred on June 18, 1985, in the parking lot of the Oak Brook Shopping Center, outside the Sears store in which plaintiff had worked part-time for approximately five years. Defendant was 15 years old at the time of the incident and was not licensed to drive. Defendant testified that he had just looked both ways and turned left into a one-way aisle of the parking lot and was proceeding in the proper direction. Just as he turned into the aisle, defendant testified that he saw plaintiff and attempted to stop but was unable to, and his car hit the plaintiff. Plaintiff testified that she was walking to her car located in another aisle. Plaintiff testified that she had cut over to the aisle and was walking down the aisle when she was struck by defendant's car.

Paul MacLennan testified that he was parked in the second or third stall of this aisle when he saw plaintiff walk by the right side of his car and a moment later heard a scream and saw (in his rearview mirror) plaintiff on the hood of defendant's car. MacLennan testified that he then saw plaintiff slump off the hood onto the ground.

Defendant argued that he had just turned left around an island, into the aisle, when plaintiff cut across the aisle into his path. Plaintiff argued that she had entered the aisle farther up and was walking directly down the aisle. Both parties stated they did not see the other until an instant before the accident. Defendant estimated his speed at 5 to 10 miles per hour. Plaintiff estimated the speed of defendant's car to be 25 to 30 miles per hour.

At trial, after the close of all the evidence, plaintiff moved for a directed verdict as to defendant's liability and plaintiff's freedom from contributory negligence. After extensive argument, both motions were denied. After these motions were denied, plaintiff and defendant presented their closing arguments to the jury. During defense counsel's closing argument, defense counsel repeatedly stated that both parties were at fault and that his client should only be found to be 50% at fault. After defense counsel's closing argument, the jury was excused, and plaintiff moved for a directed verdict as to defendant's liability, arguing that defense counsel had admitted the liability of his client. The trial court directed a verdict on the issue of defendant's liability in favor of plaintiff. The jury returned and was instructed that the issue of defendant's liability was no longer before them for their consideration, and plaintiff presented his rebuttal argument. The issues of plaintiff's comparative negligence and damages were submitted to the jury. The jury found plaintiff 18% at fault and awarded reduced damages in the amount of $115,005 for plaintiff's disability, pain and suffering, medical expenses, and lost earnings.

On appeal, defendant argues that the trial court erred: (1) in directing a verdict as to defendant's liability based on the trial court's finding of a judicial admission; (2) in failing to properly instruct the jury on proximate cause, statutory violations and defendant's theory of comparative negligence based on a "safer alternative route"; (3) in its pretrial rulings on defendant's motion in limine ; and (4) that plaintiff's counsel prejudiced the jury by certain comments during the course of trial; and (5) the verdict was against the manifest weight of the evidence.

We address defendant's contention that the trial court erred when it found defendant's closing argument to be a judicial admission of liability and directed a verdict in favor of plaintiff on the issue. Attorneys are deemed agents of their clients for the purpose of making admissions in all matters relating to the progress and trial of an action. (Beverly Bank v. Coleman Air Transport (1985), 134 Ill. App. 3d 699, 481 N.E.2d 54.) Actions of an attorney in the management of a client's case are binding on the client, and the negligence of an attorney is insufficient to warrant a new trial. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 498 N.E.2d 747.) Judicial admissions are formal acts of a party or his attorney in court, dispensing with proof of a fact claimed to be true, and are used as a substitute for legal evidence at trial. (Frisch v. International Harvester Co. (1975), 33 Ill. App. 3d 507, 338 N.E.2d 90.) An admission by an attorney for a party during trial supersedes all proofs upon the point in question. (Standard Management Realty Co. v. Johnson (1987), 157 Ill. App. 3d 919, 510 N.E.2d 986.) What constitutes a judicial admission must be decided under the circumstances in each case, and before a statement can be held to be such an admission, it must be given a meaning consistent with the context in which it is found. (Standard Management Realty Co., 157 Ill. App. 3d 919, 510 N.E.2d 986.) The power of a court to act upon facts conceded by counsel is as plain as its power to act upon evidence produced. Petersen v. General Rug & Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 77 N.E.2d 58.

The issue of whether a party's statement is a judicial admission has arisen in many contexts, including statements by attorneys in opening statements, direct examination, cross-examination and closing argument. (Deel v. United States Steel Corp. (1969), 105 Ill. App. 2d 170, 245 N.E.2d 109 (answers to interrogatories); Vincent v. Wesolowski (1967), 87 Ill. App. 2d 477, 232 N.E.2d 120 (deposition testimony); Frisch v. International Harvester Co. (1975), 33 Ill. App. 3d 507, 338 N.E.2d 90 (direct examination); Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 200 N.E.2d 149 (cross-examination); Petersen v. General Rug & Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 77 N.E.2d 58 (opening statements); Sabo v. T. W. Moore Feed & Grain Co. (1968), 97 Ill. App. 2d 7, 239 N.E.2d 459 (closing argument).) While we have not found any case which expressly holds whether or not a closing argument may properly be the basis of a judicial admission, it is clear that an attorney's admission in his opening statement to the jury may be the basis for a finding of a judicial admission. (Standard Management Realty Co., 157 Ill. App. 3d 919, 510 N.E.2d 986.) Statements made by an attorney in the course of trial and during cross-examination have been held to be judicial admissions. (Darling, 50 Ill. App. 2d 253, 200 N.E.2d 149.) There are situations where statements made in closing argument, under the circumstances of the case and within the context made, were not judicial admissions. (Sabo, 97 Ill. App. 2d 7, 239 N.E.2d 459; Bunch v. Rose (1973), 10 Ill. App. 3d 198, 293 N.E.2d 8; Deel, 105 Ill. App. 2d 170, 245 N.E.2d 109.) What becomes clear, in our review of the cases, is that whether or not a statement by an attorney in the course of trial is a judicial admission depends upon the circumstances of the individual case and the giving of a consistent meaning to the statement within the context in which it is found.

The fact that the statement by the attorney is made in opening or closing argument or on direct or cross-examination is relevant as to the context in which the statement is made and not determinative of whether or not the statement is a judicial admission. We hold that statements made by an attorney in closing argument may be the basis from which a trial court finds a judicial admission. See Petersen v. General Rug & Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 77 N.E.2d 58 (opening statement).

The next issue is whether the trial court abused its discretion in finding defense counsel's statements in closing arguments to be a judicial admission of defendant's liability. To place defense counsel's closing argument in context, we must briefly discuss the state of the evidence at that point in the trial. The testimony of both parties was that neither party saw the other until an instant before the accident. The evidence also indicated that neither plaintiff's nor defendant's view was obstructed. It was disputed as to whether plaintiff had just cut across the aisle or had been walking down the middle of the aisle. Paul MacLennan, a disinterested witness, saw the plaintiff on defendant's hood just after impact in his rearview mirror. MacLennan was parked two to three stalls up the aisle from the end of the aisle from which defendant's car entered. At the end of the aisle, before the parking stalls began, was a grassy island 10 feet to 15 feet long. This evidence indicates that the accident occurred at least 10 feet and two to three stalls up the aisle. The evidence indicated that, regardless of where plaintiff came from, defendant's view of the area around the point of impact was unobstructed. In summary, the evidence would support a Conclusion that both parties failed to look where they were going. It was under these circumstances that defense counsel addressed the jury in closing argument.

At the beginning of closing argument, defense counsel characterized closing argument of counsel as suggestions as to what the jury ...


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