Section 8.3 Admissions

• Library: Civil Trial Practice 2015 Supp

A. (§8.3) Admissions

As observed in §8.1 above, MAI 2.01 [2002 Revision] provides in part: “However, if a lawyer admits some fact on behalf of his client, the other party is relieved of the responsibility of proving that fact.”

It was said long ago that a party is “bound” by the opening statement. Eaton v. Curtis, 4 S.W.2d 819, 824 (Mo. 1928). In reading the case, it becomes clear, however, that the bonds were applied by the litigant’s attorney. In Eaton, because the facts hypothesized by the challenged instructions were stated by the appellant’s counsel during opening statement, the Supreme Court refused to decide whether the instructions were erroneous.

Admissions in opening statement are easy to make, particularly if counsel makes a statement that is contrary to the position that counsel wishes to take at the close of all the evidence or during jury instructions (e.g., referencing specific negligence when the ultimate intention is to submit on a theory of res ipsa loquitur). Likewise, if counsel does not intend to argue comparative negligence in a premises liability situation, it is unwise to make an opening statement telling the jury that the alleged defect was visible or that the plaintiff was “not paying attention.” The defendant may object to the use of the opening statement as evidence of comparative fault, but if the defendant mentions it in opening and in closing argument and the issue is supported by the evidence, the issue is before the court and tried by consent. Rudin v. Parkway Sch. Dist., 30 S.W.3d 838, 842–43 (Mo. App. E.D. 2000). In Rudin the defense objected to a jury submission of comparative fault based on lookout because it inferred that the premises were unsafe and because they had not vigorously attempted to meet their burden of proof on the issue. As indicated, the court held that that the issue was tried by consent, and the jury was properly instructed that they must first find that the premises were unsafe before assessing percentages of fault.

An essential issue in Frisby v. St. Louis Transit Co., 113 S.W. 1059
(Mo. 1908), was whether the defendant owned and operated a car that had struck and killed the plaintiffs’ son. No such evidence appeared in the record, but the plaintiffs, who suffered dismissal at the close of their evidence, contended that defense counsel had conceded those facts during opening statement. Because the opening statement had not been preserved, the plaintiffs lost, but the Court observed that if the...