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)….
Legal Articles
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…
Aiding and Abetting
Though relatively rare, “aiding and abetting” can also result in civil liability. In Missouri, for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he or she knows that the other’s conduct contitutes a breach of duty and gives substantial assistance or encouragement to the other. Bradley…
Aggravating Circumstances for Punitive Damages
Punitive damages are generally only permissible in cases where the defendant committed an intentional wrongdoing. This is the case because the law is more inclined to penalize and punish willful and wanton conduct, as opposed to accidental or inadvertent conduct. Punitive damages may, however, be obtained from a jury in negligence cases if there are…
Negligent Entrustment of Personal Property
If you entrust someone with personal property, and he or she injures someone with or when using the personal property, you may be liable to the injured party for “negligent entrustment.” In Missouri, the elements of negligent entrustment are: (1) the entrustee was incompetent by reason of age, inexperience, habitual recklessness or otherwise; (2) the entrustor knew…