Connolly v. Nicollet Hotel

Supreme Court of Minnesota · 1960 · Torts

Tortstrial misconductclosing argumentnew trialnew trialclosing argumentmisconduct of counselabuse of discretion

Facts

Plaintiff was injured when falling debris struck her while she walked on the public sidewalk adjacent to defendants' hotel. On this appeal, defendants challenged only plaintiff counsel's closing argument, which commented on defendants' failure to call hotel-related witnesses such as the doorman, house detectives, and four firemen, and suggested the jury could consider that omission. Before trial, defendants' counsel had said he did not know whether he would call six convention employees as witnesses and did not want to be foreclosed from doing so. Defendants produced no witnesses or evidence, and in closing argued that even after full preparation no one knew the source of the object that injured plaintiff.

Issue

Did plaintiff's counsel's closing argument about defendants' failure to call certain witnesses so interfere with the administration of justice and substantially prejudice defendants that the trial court abused its discretion by denying a new trial?

Rule

A motion for new trial based on improper remarks in closing argument is governed by no fixed rule and rests almost wholly in the trial court's discretion; appellate reversal is warranted only for a clear abuse of discretion. In a civil case, where a party unexplainedly fails to produce an available witness or evidence presumably favorable to that party, the jury may draw an unfavorable inference, and counsel may comment on that failure; even if a comment is unjustified, a new trial is not required absent substantial prejudice.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a negligence trial in St. Paul, Nora Keene sued Riverfront Market Hall after a ceiling panel fell near her. During closing, Nora's lawyer noted that the market called no maintenance staff and said the jurors could use their common sense in evaluating that omission; the defense objected after the argument ended, and the judge denied a new trial after instructing the jury that Nora bore the burden of proof.

If Riverfront Market Hall appeals, what is the strongest reason to affirm the denial of a new trial?

Explanation. A motion for new trial based on closing argument rests largely in the trial court's discretion, and appellate reversal is proper only for clear abuse of that discretion. In a civil case, opposing counsel may comment on an unexplained failure to produce available witnesses or evidence presumably favorable to the other side, and even unjustified comment does not require a new trial without substantial prejudice. (Derived from Connolly v. Nicollet Hotel (n.d.).)