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314.283.8930; henry@elsterlaw.com

Negligence, Third-Parties

Negligence requires a showing of (1) the existence of a duty to protect the plaintiff from injury, (2) breach of the duty, (3) causation and (4) an injury to plaintiff. Thiele v. Rieter, 838 S.W.2d 441, 442 (Mo. Ct. App. 1992). Foreseeability is key in determining whether a duty exists. Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 848 (Mo. 2018). […]

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Trusts: Beneficiary, Qualified Beneficiary, Interested Person

In trust litigation, particularly breach of trust litigation, your legal relation to the trust is extremely important in determining what claims you can make. Missouri trust law distinguishes between a “qualified beneficiary,” “beneficiary” and “interested person.” By way of example, a qualified beneficiary is typically either someone who is eligible to receive mandatory or discretionary […]

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Breach of Contract Damages: Future Lost Profits

A plaintiff needs to show damages to prevail on a breach of contract claim. In many contracts, and often in business contracts, future lost profits will wholly or partially form the basis of a damages request. To obtain lost profits, a plaintiff needs to prove the facts of damages with reasonable certainty and provide an […]

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Ghost Tortfeasor/Non-Party Liability, Negligence

A negligence case generally requires that a plaintiff prove a (1) legal duty on the part of the defendant to conform to a certain standard of conduct, (2) a breach of the duty, (3) proximate cause between the conduct and the resulting injury and (4) damages. Hoover’s Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431 (Mo. 1985). A defendant […]

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Continuing Wrong Exception to Statute of Limitations

Failure to bring a claim within the applicable statute of limitations means that the claim is time-barred. The best lawsuit in the world cannot be brought out of time. The clock starts ticking on when to bring the claim when the cause of action has “accrued” — i.e., usually when the damages are reasonably ascertainable. […]

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Special Fiduciary, Trust Litigation, Breach of Trust

In breach of trust litigation, the plaintiff can request a variety of remedies against the trustee. The remedies include, among other things, damages, removal and/or suspension. In more contentious situations, a probate court does have the authority to appoint a “special fiduciary” to administer the trust, in whole or in part, while the suit is […]

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Breach of Contract: Specific Performance Versus Damages

When a breach of contract occurs, the general rule is that, in certain cases, the remedy is either a suit for damages or a suit for specific performance of the contract. Magruder v. Pauley, 411 S.W.3d 323, 331 (Mo. Ct. App. 2013). The suit for damages would provide the non-breaching party with money, whereas the […]

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Public Duty Doctrine, Negligence

To prevail on a negligence claim, a plaintiff needs to plead that a defendant owed the plaintiff a (1) duty, the (2) defendant breached the duty, and the (3) defendant caused the plaintiff harm/damages. The public duty doctrine usually protects a public officer from negligence claims. Benson v. Kansas City, Bd. of Police Com’rs, 366 […]

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Offsets, Equity, Damages

“Off-setting” judgements is well established in Missouri. It generally arises when there are competing claims made by different parties against each other in a lawsuit. For example, if party A wins on a $50k claim against party B, and party B wins on a counterclaim of $60k against party A, a court may enter an […]

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Prudent Investor Rule, Asset Management, Fiduciary Litigation

A fiduciary (e.g., trustee, personal representative, etc.) has an obligation to invest and manage assets as a “prudent investor” would. When making investment and management decisions, the fiduciary should consider the purposes, terms, distribution requirements and other circumstances of the trust or fiduciary relationship. O’Riley v. US Bank, NA, 412 S.W.3d 400, 414 (Mo. Ct. App. […]

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