Negligence has four elements: (1) a legal duty of the defendant to protect the plaintiff from injury, (2) breach, (3) proximate cause, and (4) injury. Pendergist v. Pendergrass, 961 S.W.2d 919, 923 (Mo. App. W.D. 1998). “Duty is unique among the elements of negligence because the existence of duty is a question of law to…
Legal Articles
Implied Primary Assumption of Risk
Implied primary assumption of the risk is a defense to certain claims. It provides that “if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it.” Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo….
Premises Liability: Third-Party Criminal Acts
As a general rule, if a customer/invitee of a business is harmed by a third-party criminal act, the business is not responsible. The rationale for this rule is that criminal acts are rarely foreseeable. Early v. Dunn, 670 S.W.3d 47, 51 (Mo. App. E.D. 2023). There are a number of exceptions. First, a duty arises…
Negligence Per Se
Common law negligence consists of the (1) existence of a legal duty, (2) breach of the duty and (3) proximately caused damages. Negligence per se exists when the state legislature creates a statute defining a duty and a certain standard of care. Monteer v. Prospectors Lounge, Inc., 821 S.W.2d 898, 900 (Mo. Ct. App. 1992)….
Comparative Fault/Negligence; Contributory Fault/Negligence
The law in Missouri used to be that contributory negligence was a complete bar to a plaintiff recovering any damages against a defendant for negligence. Under the contributory negligence rule, a plaintiff was prohibited from recovering damages if the plaintiff’s own negligence directly contributed in any way to the injuries. Gramex Corp. v. Green Supply,…
Legal Duties
Legally actionable negligence requires, among other things, the existence of a legal duty between a plaintiff and defendant and a defendant’s breach of that duty. The question of whether a duty exists is solely a legal question. A legal duty usually flow from one of three sources: (1) created by statute; (2) arises because the…
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)….
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…
Contractual Exculpatory Clauses
Sometimes a point of contention in breach of contract disputes, an exculpatory clause/provision in a contract is one which releases a person from his or her own future negligence. While these provisions are disfavored in Missouri, they are not per se void. Alack v. Vic Tanny Int’l of Missouri, Inc., 923 S.W.2d 330, 334 (Mo….
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…