Supreme Court of Missouri
en banc

In re: New and Revised MAI-Civil Instructions and Committee Comments


1.00 PROHIBITED INSTRUCTIONS – GENERAL COMMENT
(Committee Comment – Revision)

37.00 COMPARATIVE FAULT – GENERAL COMMENT
(Committee Comment – New)


1. New and revised MAI-CIVIL Instructions and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.

2. The Instructions and Committee Comments as set forth in the specific exhibits attached hereto must be used on and after July 1, 2018, and may be used prior thereto; any such use shall not be presumed to be error.

3. It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.




1.00 [2018 REVISION] PROHIBITED INSTRUCTIONS – GENERAL COMMENT


A. Chapter 1 prohibits certain instructions. It is not intended to be an exhaustive list of prohibited instructions. There may be other types of instructions that are prohibited by case law or rule.

B. For example, "abstract statements of law" and "act of God" instructions have routinely been condemned by the courts. Rule 70 prohibits instructions that submit to the jury or require findings of "detailed evidentiary facts."

C. Because an instruction is prohibited on a subject does not necessarily mean that evidence and argument are also prohibited. The classic example is the prohibited "sole cause" instruction. See MAI 1.03. It is well established that "sole cause" evidence and argument are permissible, though an instruction on the subject is not.

D. The Committee notes that in Pisoni v. Steak 'N Shake Operations, Inc., 468 S.W.3d 922 (Mo. App. 2015), the court reviewed Missouri case law on the subject of "spoliation" in the context of an adverse inference instruction. The Pisoni court stated that spoliation, when established, may result in different remedies allowed by the trial court, including an adverse inference argument, preclusion of the offending party's evidence as to what the missing evidence showed, and/or an "admission" against the offending party – but that a jury instruction on "spoliation" has not been approved under current Missouri case law. See also Berger v. Copeland Corp., LLC, 505 S.W.3d 337, 338-41 (Mo. App. 2016); cf. Freight House Lofts Condo Ass'n v. VSI Meters Servs., Inc., 402 S.W.3d 586, 594-96 (Mo. App. 2013). The court cited with approval the Committee's observations in MAI (Civil), Why and How to Instruct a Jury, at LXXV-LXXVI, as follows:


The Committee continues to adhere to that view, but notes that other remedies may be properly fashioned by the trial court under circumstances different from those in reported Missouri decisions. The Supreme Court of Missouri has not definitively addressed these issues.


37.00 [2018 NEW] COMPARATIVE FAULT – GENERAL COMMENT


A. Missouri has adopted pure comparative fault as set forth in the Uniform Comparative Fault Act, 12 U.L.A. 135 (1996), "insofar as possible." Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). The Uniform Comparable Fault Act may be a bit difficult to locate, but it is attached as an Appendix to the Gustafson decision. A thorough analysis of comparative fault is not possible within the limitations of this General Comment. However, a few observations on the interrelationship of comparative fault with instructional issues are appropriate.

B. The adoption of pure comparative fault in Missouri does not mean that comparative fault will be submitted in all cases. The doctrine does not eliminate or reduce the defendant's burden of pleading and proving a prima facie case of fault on the part of the plaintiff. The doctrine only eliminates that aspect of contributory negligence that would operate to bar a plaintiff's recovery. Rather, such negligence on the part of the plaintiff, if supported by law and fact, translates that conduct into a reduction of plaintiff's recovery in proportion to the percentage of fault assessed to plaintiff.

C. An instruction submitting comparative fault of the plaintiff must be supported by substantial evidence, and by the law, or it will be erroneous. Herrington v. Medevac Med. Response, 438 S.W.3d 417 (Mo. App. 2014); Roy v. Mo. Pac. R.R. Co., 43 S.W.3d 351 (Mo. App. 2001); Brown v. Shawneetown Feed & Seed Co., 730 S.W.2d 587 (Mo. App. 1987).

D. In a premises case, there must also be evidence that the plaintiff had actual (or constructive) knowledge and appreciation of the danger actually encountered, that the plaintiff could have seen the danger, and that the plaintiff could have taken precautionary action to avoid the danger. Rider v. YMCA of Greater Kansas City, 460 S.W.3d 378 (Mo. App. 2015); Brown, supra; Burns v. Schnuck Mkts., Inc., 719 S.W.2d 499 (Mo. App. 1986).

E. Under some circumstances, the doctrine of assumption of the risk (implied primary assumption of the risk) is a question of law for the court. On the other hand, "implied secondary assumption of the risk" would ordinarily be submitted as a "failure to keep a careful lookout." See Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. banc 2014).

F. If there is evidence from which a jury could conclude that a plaintiff's negligence was legally sufficient, and a contributing cause to the plaintiff's own damages, the case may be submitted to the jury under approved comparative fault instructions in the format provided in Chapter 37. A comparative fault instruction must be tendered by either the defendant, or the plaintiff, if the case is to be submitted under comparative fault. However, the submission of comparative fault is not the exclusive province of the defendant. See Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 810 (Mo. App. 2008); Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. App. 2006). In the Brown & Williamson Tobacco Corp. cases, the court noted that allowing a defendant to withdraw consideration of comparative fault after introduction of evidence of the plaintiff's fault would negate the concept of comparative fault and effectively reinstate the concept of contributory negligence as an absolute bar to recovery.

G. If neither side tenders a comparative fault instruction, the case may be submitted on the basis of the existence or nonexistence of defendant's fault. Henderson v. Terminal R.R. Ass'n of St. Louis, 736 S.W.2d 594 (Mo. App. 1987); Earll v. Consol. Aluminum Corp., 714 S.W.2d 932 (Mo. App. 1986).

H. Comparative fault has been applied legislatively to the doctrine of strict liability in tort for a product defect. See §537.765, RSMo; Egelhoff v. Holt, 875 S.W.2d 543, 547 (Mo. banc 1994). Any instruction that simply quotes statutory language from §537.765 for a submission of comparative fault may be erroneous as not complying with Rule 70.02(b) requirements that all instructions are to be simple, brief, impartial, and neither submit, nor require findings of, detailed evidentiary matters. The subparagraphs of §537.765 are necessarily general and do not specify any act of the plaintiff on which to base a finding of comparative negligence and may implicate judicial prohibitions against roving commissions.

I. Comparative fault has also been applied to other forms of statutory strict liability. See Coble v. Taylor, 480 S.W.3d 467 (Mo. App. 2016) (strict liability claim under the Animal Enclosure Act, §272.030, RSMo).

J. In a case involving multiple defendants, the defendants are permitted only one, jointly submitted comparative fault instruction related to the plaintiff's fault; it would be error to give two or more. Egelhoff, 875 S.W.2d 543; Cornell v. Texaco, Inc., 712 S.W.2d 680 (Mo. banc 1986). It is important to note that a defendant may rely on multiple submissions of plaintiff's fault ─ submitted in the alternative in a single instruction ─ even though inconsistent. Michael v. Kowalski, 813 S.W.2d 6 (Mo. App. 1991).

K. The doctrine of comparative fault is concerned only with the relative fault among the parties. It does not contemplate an inquiry into all causative agents for an injury. Therefore, the 100% figure determined by the jury is related only to the combined fault of the parties. There may be other causative agents ─ e.g., immune parties, settling tortfeasors, persons not joined, etc. ─ that may be considered to be partly at fault, but these are not part of the determination of all or any part of the fault assessed by the jury. Freight House Lofts Ass'n v. VSI Meter Servs., 402 S.W.3d 586 (Mo. App. 2013). The Comment to §2 of the Uniform Comparative Fault Act, 12 ULA 135, 136 (1996), requires that the conduct or fault of non-parties be ignored. Thus, the verdict form should not contain a space for the assessment of fault to a nonparty or settling tortfeasor. Fahy v. Dresser Indus., Inc., 740 S.W.2d 635 (Mo. banc 1987). Likewise, a verdict form may not allow an assessment of a percentage of fault to a party on an unpleaded theory. Bradley v. Waste Mgmt. of Mo., Inc., 810 S.W.2d 525 (Mo. App. 1991).

L. Under Gustafson, the doctrine of joint and several liability was not affected by the adoption of pure comparative fault as contained in the Uniform Comparative Fault Act. However, in 2005, the Missouri legislature revised §537.067, RSMo, and changed responsibility for damage awards depending on the parties' percentages of fault. That revised statute now provides that any party found to be less than 51% responsible is only liable for that percentage of a damage award. Any party responsible for 51% fault or more can be made to pay the entire amount of an award. §537.067.1.

M. When a case involves a primary injury to one spouse, and a consortium claim on behalf of the other spouse, the same percentage of fault assessed to the primary claim also applies to the consortium claim. See Johnson v. Hyster Co., 777 S.W.2d 281 (Mo. App. 1989); MAI (Civil) 37.08 and 37.09.

N. General principles applicable to verdict-directing instructions also apply to comparative fault cases. A party has a right to try or defend a case based on that party's own theory as long as the verdict-directing instruction submitting that party's theories is supported by the law, the evidence, and in proper form. Mitchell v. Evans, 284 S.W.3d 591 (Mo. App. 2008); Coleman v. Meritt, 292 S.W.3d 339 (Mo. App. 2009). Neither an opposing party, nor the trial court itself, has the right to interfere with a party's selection of an appropriate submission of recovery or defense.

O. As a general proposition, the appellate courts may remand for new trial on all issues because of an erroneous comparative fault instruction ─ the issues of fault and damages are generally considered to be blended and interwoven. Secrist v. Treadstone, LLC, 356 S.W.3d 276 (Mo. App. 2011); Talley v. Swift Transp. Co., 320 S.W.3d 752 (Mo. App. 2010).

P. The Supreme Court of Missouri also held that the doctrine of pure comparative fault applied to a claim of purely economic loss. Children's Wish Found. Int'l, Inc. v. Mayer Hoffman McCann, P.C., 331 S.W.3d 648 (Mo. banc 2011).