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Copeland v. Stebco Products Corp.9/29/2000
ant's request for a mistrial or new trial after finding that sustaining defendant's objections to plaintiff's argument cured any prejudice to defendant. Comments on the evidence during closing argument are proper only if proven by direct evidence or if based on a reasonable inference from the facts. Elliott v. Koch, 200 Ill. App. 3d 1, 19 (1990). Here, despite no evidence introduced during trial about Rachel Barton's case, plaintiff's counsel referred to the case in closing arguments as follows:
"PLAINTIFF'S COUNSEL: Is that a substantial amount of money? It absolutely is a substantial amount of money. And under the circumstances of the injury , I don't think that it will take a lot of justification for you to find that to be an appropriate amount of money. As recently as two or three months ago this community spoke about what a violinist -
DEFENSE COUNSEL: Objection, your Honor.
THE COURT: All right. I'll sustain objection.
DEFENSE COUNSEL: Thank you.
PLAINTIFF'S COUNSEL: I'll tell you one thing, ladies and gentlemen. The musician who plays the violin at least can get up every morning and still go play the violin.
DEFENSE COUNSEL: Objection, your Honor. We're still talking about a totally different case, a totally different situation.
THE COURT: I'll sustain the objection.
PLAINTIFF'S COUNSEL: I'll change the analogy to a flutist who can still get up every morning without a leg and go do what she loves to do, and that's play the flute. An elementary reading teacher who teaches small children every day and has great demands on her to read, to write, to keep track of the demands that go on in a classroom of second and third and fourth graders running around all over cannot continue her loved profession any more than the flutist could if she lost her arm or her hand or her fingers."
As the record reflects, after the trial court sustained two objections during this portion of the closing argument, counsel persisted in comparisons not based on the evidence. Such remarks are improper as they are based on neither evidence nor reasonable inference from the evidence. The repetition of the argument after the trial court repeatedly sustained objections served to undermine the fairness of the trial process. Kilakowski v. Voris, 94 Ill. App. 3d 404 (1981). Such comment should not be repeated on retrial. The purpose of argument is to draw reasonable inferences from the evidence and assist the jury in fairly arriving at a verdict based on the law and the evidence. It is error for counsel to appeal to the passions of the jury. Hansel v. Chicago Transit Authority, 132 Ill. App. 2d, 402 (1971). Counsel must confine closing arguments to matters that are in evidence and to reasonable inferences drawn from the evidence. The improper appeal to the passions of the jury through repeated reference directly or indirectly to the Rachel Barton case, even after objections were sustained, together with plaintiff's failure to disclose the new tests, measurements, findings and conclusions of plaintiff's expert witness was prejudicial and denied defendant a fair trial.
IV. Defendant's Remaining Issues
Defendant's last two issues on appeal challenge: (1) the trial court's decision to grant a directed verdict on defendant's affirmative defense of assumption of risk; and (2) the jury verdict in the third-party action. These issues will ultimately be resolved based upon the facts established by the evidence upon retrial.
CONCLUSION
For the reasons stated above, the judgment of the circuit court is reversed and remanded for a new trial consistent with this opinion.
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