Cook ex rel. Cook v. Willis

GARRISON, Presiding Judge,

concurring.

I concur in the result reached by the principal opinion which concludes that the portion of Defendant’s closing argument referred to was error in part because the trial court had directed a verdict on Defendant’s third-party petition against the mother of Ronnie. In my opinion, this factual scenario distinguishes this case from others permitting a defendant to argue that some other party was the cause of an accident. See Cook v. Cox, 478 S.W.2d 678, 682 (Mo.1972). For the same reason, this case is also distinguished from cases such as Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920 (Mo. banc 1981). In that case, the Missouri Supreme Court held that although the trial court had refused to instruct on plaintiffs contributory fault, defendant could argue that plaintiff recognized the danger in riding a crane because such comments were not necessarily applicable only to contributory fault but could apply, as well, to the issue of whether plaintiff was using the crane in the manner reasonably anticipated, an element of his case. Id. at 927.

CROW, Judge,

concurring.

I concur.

I agree with the principal opinion’s treatment of Points I and II.

I agree that Point III is meritorious and warrants a new trial for the reasons set forth in the principal opinion and the concurring opinion of GARRISON, P.J.