Supreme Court of Missouri
en banc

MAI 2.00(A) RECOMMENDED EXPLANATORY INSTRUCTIONS BEFORE JURY
SELECTION

(Instruction - New)
(Committee Comment - New)

 
MAI 2.00(B) RECOMMENDED ADMONITIONS AT RECESS OR ADJOURNMENT -
GENERAL COMMENT

(General Comment - New)
 

MAI 2.01 EXPLANATORY INSTRUCTION FOR ALL CASES

(Committee Comment - Revision)

MAI 24.01(A) VERDICT DIRECTING - CONSTRUCTIVE KNOWLEDGE NOT IN
ISSUE - FAILURE TO PROVIDE SAFE PLACE TO WORK

(Committee Comment - Revision)

 
MAI 24.01(B) VERDICT DIRECTING - CONSTRUCTIVE KNOWLEDGE DISPUTED -
FAILURE TO PROVIDE SAFE PLACE TO WORK

(Committee Comment - Revision)

 
MAI 32.09 BATTERY ACTIONS - EJECTING TRESPASSER

(Committee Comment - Revision)

 
MAI 32.10 BATTERY ACTIONS - RESISTING INVASION OF PROPERTY

(Committee Comment - Revision)

 
MAI 32.11 BATTERY ACTIONS - SELF-DEFENSE

(Committee Comment - Revision) 2

 
MAI 38.01(A) VERDICT DIRECTING - MISSOURI HUMAN RIGHTS ACT

(Instruction - Revision)
(Notes on Use - Revision)
(Committee Comment - Revision)

 
MAI 38.01(B) VERDICT DIRECTING--MISSOURI HUMAN RIGHTS ACT -
EMPLOYMENT DISCRIMINATION BY REASON OF DISABILITY -
EXISTENCE OF DISABILITY DISPUTED

(Instruction - New)
(Notes on Use - New)
(Committee Comment - New)

 
1. Revisions of previously approved MAI-Civil Instructions, Notes on Use, 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, Notes on Use, and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after January 1, 2014, and may be used prior thereto; any such use shall not be presumed to be error.
 
3. It is further ordered that the Committee on Jury Instructions – Civil may place a "General Notice" in the pocket part of chapter 36.00, Forms of Verdict, indicating a change made in each verdict form in the MAI 7th Edition - Civil.
 
4. 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.
 
Day - to - Day
 
_____________________________
RICHARD B. TEITELMAN
Chief Justice

  
    2.00(A) [2013 New] Recommended Explanatory Instruction Before Jury Selection
   
  The trial of a lawsuit involves a considerable amount of time, effort and expense, and the parties are entitled to have their rights finally determined. The failure on your part to follow the rules and instructions I give to you may result in a miscarriage of justice, and a new trial may be required.
   
You have been summoned today as prospective jurors for the trial of a civil case. Civil cases begin with the selection of a qualified and impartial jury. You will be asked a series of questions to determine if you have any personal interest in or knowledge of the case that would make it difficult for you to be fair and impartial. The questions asked are not meant to pry into your personal life; they are simply a necessary part of the process of selecting a jury.
   
Your answers must be truthful and complete. Therefore, please listen to the questions carefully and take your time in answering. If you do not understand a question, raise your hand and it will be clarified. If later in the questioning process you remember something that you failed to mention earlier, raise your hand and let us know.
   
Following the questioning process, some of you will be chosen as jurors and some will not. Please understand that not being chosen does not reflect on your ability or integrity. You will now take an oath to honestly answer these questions [The panel will be sworn].
   
The parties have a right to have this case decided only on the evidence presented in this court. You must not conduct your own research or investigation into any issues in this case. You must not attempt to obtain any outside information whatsoever about the case.
   
You must not comment, discuss, or communicate with anyone, by any means, not even among yourselves, what you hear or learn in trial until the case is concluded and, then, only when all of you are present in the jury room for deliberation of the case under the final instructions I give to you.
   
During the jury selection process, I want to emphasize that you are not allowed to use any electronic communication devices or the Internet to search for, receive, send, or post any information about the parties, the lawyers, the judge, the witnesses, or any evidence or locations mentioned. Do not discuss or attempt to research what the law may be in this case. This ban applies to all electronic devices, [such as smartphones, lap-tops, or iPads]; all forms of electronic communication, [such as email, text messages, or blogging]; and Internet research tools and social media [like Google, Facebook, or Twitter] [(insert current examples)].
   
    This instruction is not mandatory, but the MAI Committee recommends that this instruction be read to the jury panel before the jury selection process begins. This instruction will not be numbered or given to the jury when it retires to deliberate.
   
2.00(B) [2013 New] Recommended Admonitions at Recess or Adjournment - General Comment
   
    A. Directions or admonitions given by a trial judge to a jury during the course of trial are not instructions. Since directions or admonitions are not instructions, they are not to be typed or given to the jury when it retires to deliberate. Examples of such directions or admonitions include a direction not to visit the scene of an accident or an oral repetition of the admonition to refrain from discussing the case during a recess. Considerable discretion is afforded to the trial judge, subject to appropriate requests or objections of counsel, to determine the scope and frequency of such directions or admonitions.
   
B. Directions or admonitions may be derived from parts of MAI 2.01 as may be appropriate under the circumstances of a particular case, or may be otherwise fashioned by the court with assistance of counsel. The trial court should make a record of proposed admonitions or directions intended to be given to the jury, and an opportunity should be afforded to counsel to make requests, objections, or other record for appeal.
   
C. Such directions or admonitions may be used at the beginning of a case, before jury selection, throughout the trial, at each break in trial proceedings, and at the conclusion of each day. The trial court may decide that some directions or admonitions may be best delivered orally, by standardized typed cards for each juror, as a page in juror notebooks, by some combination thereof, or by some other method in the exercise of sound discretion. The Committee does not intend to set rigorous requirements for the use of directions or admonitions, for the frequency of delivery thereof, nor for occasional omission thereof. The guiding principles should always be the efficient administration of justice, fairness to the parties, and imparting to the jurors the importance of their individual and group roles in participating in our system of justice.
   
D. The following directions or admonitions may be of assistance to the bench and bar, but are not intended by the Committee to be mandatory, exclusive, or exhaustive. Other directions or admonitions also may be appropriate under the circumstances of a given case.
   

1. I will now remind you that you must not talk about any aspect of the trial among yourselves or with anyone else, including the parties, the lawyers, or court personnel. You must keep an open mind and refrain from forming or expressing any opinions on the case. Do not read, view, or listen to any newspaper, radio, or television reports about the trial. Do not do any research or investigation on your own regarding the case, the parties, the witnesses, or the lawyers. Until you are discharged as jurors, the prohibition on electronic communications and Internet use related to the case is in effect. 6
This ban applies to all electronic devices, [such as smart-phones, lap-tops, or iPads]; all forms of electronic communication, [such as email, text messages, or blogging]; and Internet research tools and social media [like Google, Facebook, or Twitter] [(insert current examples)]. You are still free to use electronic communications and the Internet outside of the courtroom, but only for purposes wholly unrelated to this case.
   
[I again remind you if any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.]
   
   
(General Recess)
   
 
2. Justice requires that you not make up your mind about the case until all of the evidence has been seen and heard. You must not discuss this case among yourselves or with anyone else or comment on anything you hear or learn in this trial until the case is concluded and you retire to the jury room for your deliberations. Also, you must not remain in the presence of anyone who is discussing the case when the court is not in session.
   
[I again remind you if any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.]
   
   
(General Reminder - No Investigation)
   
   
3. You must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, text message, instant message, blog, tweet, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, "facebook," "myspace," "twitter," or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.
   
[I again remind you if any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.]
   

2.01 [2010 Revision] Explanatory Instruction for All Cases
   
    A. When MAI 2.01 is read to the jury at the beginning of the case, and when it is given in writing along with the other instructions at the end of the case, it should be given "as is," without further embellishment or explanation by the trial judge.
   
B. Directions or admonitions:
See MAI 2.00(B).
   
C. Cell phones, other electronic devices:
The trial court has considerable discretion regarding the use of cell phones or other electronic devices in the courthouse and during trial. Judicial discretion may be exercised by oral admonition, the addition of a paragraph regarding such devices at the end of MAI 2.01, or using a separate instruction.
Other appropriate admonitions or directions to the jury may be formulated and given by the trial judge as determined in light of the particular facts or circumstances of a given case.
See MAI 2.00(B).
   
D. Juror note-taking:
   

Supreme Court Rule 69.03 provides:
Upon the court's own motion or upon the request of any party, the court shall permit jurors to take notes. If jurors are permitted to take notes, the court shall supply each juror with suitable materials.
Jurors shall not take their notes out of the courtroom except to use their notes during deliberations.
The court shall collect all juror notes immediately before discharge of the jury.
After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person.
Juror notes shall not be used to impeach a verdict.
   

E. Juror questions:
   
Supreme Court Rule 69.04 provides:

(a) Upon the court's own motion or upon motion of any party, the court 8
may permit jurors to submit questions to witnesses. The court shall
resolve any such motion before the jury is impaneled.
   
(b) If the court permits jurors to submit questions:
(1) The court shall instruct the jurors:
(A) On the procedure to be followed for asking such questions; and
(B) That no adverse inference is to be drawn against any party if any juror question is not allowed;
(2) After all parties have completed examination of each witness, any juror may submit written, anonymous questions;
(3) All parties shall be given an opportunity outside the hearing of the jurors to object to the substance or the form of any question;
(4) The court may limit the number of questions;
(5) The court may revise any question's form and shall read the question to the witness or the parties may stipulate to the answer; and
(6) The court may allow any party to ask follow-up questions after consideration of the juror questions.
   

F. Distribution of instructions:
   
Rule 70.02(f) requires that the final instructions of the court be given to the jury in writing. While Rule 70.02 does not explicitly require that each juror be provided with a copy of the final instructions, such approach is implicitly permitted. In its October 2000 report to the Supreme Court, the Civil Jury Study Committee recommended "that each juror be given a copy of the instructions before instruction reading, final argument, and deliberation." (Emphasis supplied.) That committee also noted that juror "understanding increased significantly when each juror received his or her own copy of the instructions." The MAI Committee encourages compliance with this recommendation whenever feasible.
   
   
24.01(A) [2008 Revision]Verdict Directing - Constructive Knowledge Not In Issue -
Failure to Provide Safe Place to Work
   
    A. In an F.E.L.A. case, common law negligence rules are controlling except that these rules have been modified by F.E.L.A. Because of the "in whole or in part" language of the statute (Title 45, U.S.C.A., Section 51), the traditional doctrine of proximate (direct) cause is not applicable. A railroad is liable if its negligence is only the slightest cause of the employee's injury. Rogers v. Missouri Pac. Ry., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).
 
B. In the traditional negligence case, it is mandatory for the plaintiff to include the word "direct" or "directly" in the verdict directing instruction because of the proximate (direct) cause requirements. This prevents the jury from awarding damages or finding for plaintiff because of some indirectly contributing causative factors. This is not so with F.E.L.A. The F.E.L.A. "was enacted because the Congress was dissatisfied with the common law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence." Rogers v. Missouri Pac. Ry., 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493. The test of a jury case under F.E.L.A. is simply "whether the proofs justify within reason the conclusion that employer's negligence played any part, even the slightest, in producing injury or death for which damages are sought." (Emphasis added.) Rogers v. Mo. Pac. Ry., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493. The fact that there may have been a number of causes of the injury is, therefore, irrelevant as long as one cause may be attributable to the railroad's negligence. Heater v. Chesapeake & O. Ry. Co., 497 F.2d 1243, 1246 (7th Cir.1974).
 
C. As the United States Supreme Court has stated in Rogers v. Missouri Pac. Ry., in an F.E.L.A. case, the employer railroad is stripped of its common law defenses. The statute is an avowed departure from the rules of common law. Our state Supreme Court has consistently held that the federal interpretation of F.E.L.A. is binding on the Missouri state courts. Headrick v. Kansas City Southern Ry. Co., 305 S.W.2d 478 (Mo. 1957); Adams v. Atchison, T. & S.F. Ry., 280 S.W.2d 84 (Mo. 1955).
 
D. In Cluck v. Union Pacific R.R. Co., 367 S.W.3d 25 (Mo. banc 2012), the Court considered the applicability of the doctrine of respondeat superior liability in F.E.L.A. actions. The Court rejected plaintiff's contention that respondeat superior liability does not apply in F.E.L.A. cases. In so doing, the Court rejected plaintiff's further argument that the test for liability was merely a temporal test of whether the employee causing the injury was generally acting within the course and scope of employment at the time of the incident.
 
E. If respondeat superior liability is an issue, refer to Chapter 13 generally and specifically the definition at MAI 13.05.
   
24.01(B) [2008 Revision] Verdict Directing - Constructive Knowledge Disputed -
Failure to Provide Safe Place to Work
    A. In an F.E.L.A. case, common law negligence rules are controlling except that these rules have been modified by F.E.L.A. Because of the "in whole or in part" language of the statute (Title 45, U.S.C.A., Section 51), the traditional doctrine of proximate (direct) cause is not applicable. A railroad is liable if its negligence is only the slightest cause of the employee's injury. Rogers v. Missouri Pac. Ry., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).
   
B. In the traditional negligence case, it is mandatory for the plaintiff to include the word "direct" or "directly" in the verdict directing instruction because of the proximate (direct) cause requirements. This prevents the jury from awarding damages or finding for plaintiff because of some indirectly contributing causative factors. This is not so with F.E.L.A. The F.E.L.A. "was enacted because the Congress was dissatisfied with the common law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence." Rogers v. Missouri Pac. Ry., 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493. The test of a jury case under F.E.L.A. is simply "whether the proofs justify within reason the conclusion that employer's negligence played any part, even the slightest, in producing injury or death for which damages are sought." (Emphasis added.) Rogers v. Mo. Pac. Ry., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493. The fact that there may have been a number of causes of the injury is, therefore, irrelevant as long as one cause may be attributable to the railroad's negligence. Heater v. Chesapeake & O. Ry. Co., 497 F.2d 1243, 1246 (7th Cir.1974).
   
C. As the United States Supreme Court has stated in Rogers v. Missouri Pac. Ry., in an F.E.L.A. case, the employer railroad is stripped of its common law defenses. The statute is an avowed departure from the rules of common law. Our state Supreme Court has consistently held that the federal interpretation of F.E.L.A. is binding on the Missouri state courts. Headrick v. Kansas City Southern Ry. Co., 305 S.W.2d 478 (Mo. 1957); Adams v. Atchison, T. & S.F. Ry., 280 S.W.2d 84 (Mo. 1955).
   
D. In Cluck v. Union Pacific R.R. Co., 367 S.W.3d 25 (Mo. banc 2012), the Court considered the applicability of the doctrine of respondeat superior liability in F.E.L.A. actions. The Court rejected plaintiff's contention that respondeat superior liability does not apply in F.E.L.A. cases. In so doing, the Court rejected plaintiff's further argument that the test for liability was merely a temporal test of whether the employee causing the injury was generally acting within the course and scope of employment at the time of the incident.
   
E. If respondeat superior liability is an issue, refer to Chapter 13 generally and specifically the definition at MAI 13.05.
   
   
32.09 [1969 New] Battery Actions - Ejecting Trespasser
    A. Whether the trespasser was requested to leave before being forcibly ejected goes to the issue of what was reasonable and necessary and, therefore, is not set out as a separate element.
   
B. See Restatement (Second) of Torts §§ 77 to 83 (1965).
   
C. See Hartman v. Hoernle, 201 S.W. 911 (Mo. App. 1918); Robbs v. Missouri Pac. Ry. Co., 210 Mo. App. 429, 242 S.W. 155 (1922); Cunningham v. Reagan, 273 S.W.2d 174 (Mo. 1954).
   
D. In 2007, the Missouri legislature enacted what is commonly referred to as the "castle doctrine." Those provisions are contained in amendments to § 563.011, RSMo, et seq., and specifically § 563.031. Section 563.031 was amended again in 2010.
   
Section 563.031, RSMo, sets forth the parameters for the use of force in self-defense and defense of others. Under certain circumstances, it authorizes the use of deadly force against one who unlawfully enters a dwelling place, residence, or vehicle. § 563.031.2 (2). The defendant shall have the burden of injecting the issue of justification. § 563.031.5. The use of such deadly force must be "necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force." Section 563.031.5, RSMo Supp. 2010.
   
Section 563.074, enacted in 2007, makes the use of deadly force under the circumstances allowed in chapter 563 an absolute defense to criminal or civil liability.
   
32.10 [1969 New] Battery Actions - Resisting Invasion of Property
    A. Restatement (Second) of Torts § 77 (1965) states the right to commit a battery in defense of property is conditioned upon defender's:
 

1. Reasonable belief that the intrusion can be prevented only by force;
2. Use of only reasonable force to protect the intrusion; and
3. First, making a request to the intruder to leave unless such a request is impractical.
   

B. It is the Committee's view that all three elements bear on the issue of the reasonableness of defender's action and, therefore, should be combined under the phrase " . . . used only such force as was reasonable and necessary . . . ."
   
C. In Hartman v. Hoernle, 201 S.W. 911, 912 (Mo. App. 1918), the Court said: " . . . there can be no doubt that while defendant was entitled to resist the trespass upon his land, and the taking of his melons, he was not warranted in using more force than was necessary to eject the trespassers or to protect his property, and particularly not justified in unnecessarily assaulting plaintiff with a deadly weapon."
   
D. See also Morgan v. Durfee, 69 Mo. 469 (1879); Restatement (Second) of Torts §§ 77 to 82 (1965); 25 A.L.R. 537.
   
E. In 2007, the Missouri legislature enacted what is commonly referred to as the "castle doctrine." Those provisions are contained in amendments to § 563.011, RSMo, et seq., and specifically § 563.031. Section 563.031 was amended again in 2010.
   
Section 563.031, RSMo, sets forth the parameters for the use of force in self-defense and defense of others. Under certain circumstances, it authorizes the use of deadly force against one who unlawfully enters a dwelling place, residence, or vehicle. Section 563.031.2 (2). The defendant shall have the burden of injecting the issue of justification. Section 563.031.5. The use of such deadly force must be "necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force." Section 563.031.5, RSMo Supp. 2010).
   
Section 563.074, enacted in 2007, makes the use of deadly force under the circumstances allowed in chapter 563 an absolute defense to criminal or civil liability.
   
   
32.11 [1998 Revision] Battery Actions - Self-Defense
    A. Self-defense must be affirmatively pleaded or it is waived. Atchison v. Procise, 24 S.W.2d 187 (Mo. App. 1930).
   
B. "The law does not permit a person voluntarily to seek or invite a combat, or to put himself in the way of being assaulted, so that when hard pressed he may have a pretext for injuring his assailant . . . if the necessity for defending himself was of defendant's own creation, it did not operate to excuse him. The self-defense instructions given on his behalf should have been qualified accordingly." Lehman v. Lambert, 329 Mo. 1147, 49 S.W.2d 65, 68 (1932).
   
C. See also Lawrence v. Womack, 23 S.W.2d 190 (Mo. App. 1930); O'Shea v. Opp, 341 Mo. 1042, 111 S.W.2d 40 (1937); Duncan v. Moore, 219 Mo. App. 374, 271 S.W. 847 (1925).
   
D. The defendant must have "reasonable cause" for believing he is in danger. Daggs v. St. Louis - S.F. Ry. Co., 326 Mo. 555, 31 S.W.2d 769 (1930), appeal following rehearing, 51 S.W.2d 164 (Mo. App. 1932).
   
E. The act of self-defense must be commensurate with the apprehension of harm. See Martin v. Yeoham, 419 S.W.2d 937 (Mo. App. 1967).
   
F. See generally Restatement (Second) of Torts §§ 63 to 71 (1965). As to protection of third parties, see § 76.
   
G. In 2007, the Missouri legislature enacted what is commonly referred to as the "castle doctrine." Those provisions are contained in amendments to § 563.011, RSMo, et seq., and specifically § 563.031. Section 563.031 was amended again in 2010.
   
Section 563.031, RSMo, sets forth the parameters for the use of force in self-defense and defense of others. Under certain circumstances, it authorizes the use of deadly force against one who unlawfully enters a dwelling place, residence, or vehicle. Section 563.031.2 (2). The defendant shall have the burden of injecting the issue of justification. Section 563.031.5. The use of such deadly force must be "necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force." § 563.031.5 (RSMo 2010).
   
Section 563.074 enacted in 2007 makes the use of deadly force under the circumstances allowed in chapter 563 an absolute defense to criminal or civil liability.
   
   
38.01(A) [2013 Revision] Verdict Directing - Missouri Human Rights Act
   
    Your verdict must be for plaintiff if you believe:
   

First, defendant (here insert the alleged discriminatory act, such as "failed to hire," "discharge" or other act within the scope of §213.055, RSMo)1,2 plaintiff, and
Second, (here insert one or more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age or disability3)was a contributing factor in such (here, repeat alleged discriminatory act, such as "failure to hire," "discharge," etc.), and
Third, as a direct result of such conduct, plaintiff sustained damage.
   

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number _____(here insert number of affirmative defense instruction)].4
   
    1. If the evidence in the case demonstrates a course of conduct or harassment constituting discrimination on any grounds contained in §213.055, RSMo, then Paragraph First of this instruction may be appropriately modified.
   
2. Where the status of the plaintiff’s membership in a protected class is at issue, except in cases involving disability discrimination (see MAI 38.01 (B)), Paragraph First in the verdict directing instruction shall be in the following form:
   

First, plaintiff is (here insert one of more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, or age), and

The remaining paragraphs of the verdict directing instruction must be renumbered.
   
3. Use only where plaintiff’s disability is not at issue. Where plaintiff’s disability is disputed, use MAI 38.01(B).
   
4. In including guidance on how to instruct in instances where an affirmative defense is submitted, the Committee takes no position as to the availability of affirmative defenses in Missouri Human Rights Act cases. See, Wells v. Lester E. Cox Medical Centers, 379 S.W.3d 919 (Mo. App. 2012).
   
* Add if affirmative defense is submitted. This bracketed phrase should not be used to submit lawful justification under MAI 38.02.
   
    A. Section 213.055, RSMo, Unlawful Employment Practices, provides in part:
   

1. It shall be an unlawful employment practice:
(1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual:
(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, national origin, sex, ancestry, age or disability.
   

B. In State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo. banc 2003), the Supreme Court held that there is a right to a jury trial in actions for damages under the Missouri Human Rights Act, §213.055, RSMo et seq.
   
C. "Garden variety" emotional distress under the Missouri Human Rights Act, § 213.055, RSMo et seq., need not be supported by expert testimony. State ex rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. banc 2006).
   
D. In Hervey v. Mo. Department of Corrections, 379 S.W.3d 156 (Mo. banc 2012), the Court required that the issue as to whether or not plaintiff was a member of a protected class be set forth in this instruction if it is a disputed element. While Hervey addressed a disability discrimination cause of action, the holding in this regard is applicable to other protected classifications where membership in that class is in dispute. See Note on Use 2. Do not use this instruction for a disability discrimination claim where the issue of disability is disputed. Where plaintiff’s disability is disputed, use MAI 38.01(B).
   
E. In Wells v. Lester E. Cox Medical Centers, 379 S.W.3d 919 (Mo. App. 2012), the court questioned whether the Missouri Human Rights Act provides for the use of any affirmative defense. The Committee takes no position on the availability of affirmative defenses in Missouri Human Rights Act cases.
   
F. Thomas v. McKeever’s Enterprises, Inc., 388 S.W.3d 206 (Mo. App. 2012), addressed the issue of causation in a Missouri Human Rights Act claim in view of the trial court’s attempt to provide the jury with a curative instruction based upon a "but for" argument in closing. In reversing the trial court, the court in Thomas stated:

The trial court’s wording of the but for issue – "but for… their age…, they would not have been terminated" - effectively told the jury that it would not be enough for Appellants to prove that their age was an actual contributing cause of their discharge. Under the law, Appellants could prevail if the jury believed that age was a "contributing factor" in their discharge; this oral instruction said that they could prevail only if the jury believed that their age was the cause, in and of itself, of their discharge. 388 S.W.3d at 216.

   
The court acknowledged that terms such as "but for causation" are not to be used when instructing the jury as it creates the potential for confusion. It is generally error for a trial court to attempt to instruct the jury on "but for causation."
   
    (MAI 38.01(A) replaces the prior 31.24 (2005 New)). 17
38.01(B) [2013 New] Verdict Directing - Missouri Human Rights Act - Employment
Discrimination by Reason of Disability - Existence of Disability Disputed
   
    Your verdict must be for plaintiff if you believe:
   

First, plaintiff ["has a (physical)(mental) impairment that substantially limits one or more of plaintiff’s major life activities"; "is regarded as having a (physical)(mental) impairment that substantially limits one or more of plaintiff’s major life activities"; "has a (physical)(mental) impairment of record that substantially limits one or more of plaintiff’s major life activities”]1, and
Second, such impairment ("would not" "did not")2 interfere with performing the job in question ("if provided reasonable accommodation")("and did not require any accommodation")3, and
Third, defendant (here insert the alleged discriminatory act, such as "failed to hire," "discharged" or other act within the scope of § 213.055, RSMo)4, plaintiff, and
Fourth, such disability was a contributing factor in such (here insert the alleged discriminatory act, such as "failure to hire," "discharge," etc.), and
Fifth, as a direct result of such conduct, plaintiff sustained damage.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ________ (here insert number of affirmative defense instruction)].
   
    1. Select the phrase that applies to the case as supported by the evidence. Use only where plaintiff’s disability is disputed. Where plaintiff’s disability is not disputed, use MAI 38.01 (A).
   
2. Select appropriate phrase depending on whether plaintiff was "not hired," or was "discharged" or other alleged discriminatory act set out in § 213.055, RSMo.
   
3. Select appropriate phrase as supported by the evidence.
   
4. If the evidence in the case demonstrates a course of conduct or harassment constituting discrimination on any grounds contained in § 213.055, RSMo, then Paragraph Third of this Instruction may be appropriately modified.
   
5. In including guidance on how to instruct in instances where an affirmative defense is submitted, the Committee takes no position as to the availability of affirmative defenses in Missouri Human Rights Act cases. See, Wells v. Lester E. Cox Medical Centers, 379 S.W.3d 919 (Mo. App. 2012).
   
*Add if affirmative defense is submitted. This bracketed phrase should not be used to submit lawful justification under MAI 38.02.
   
    A. Section 213.055, RSMo, Unlawful Employment Practices, provides in part:

1. It shall be an unlawful employment practice:
(1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual:
(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, national origin, sex, ancestry, age or disability.
   

B. In State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo. banc 2003), the Supreme Court of Missouri held that there is a right to a jury trial in actions for damages under the Missouri Human Rights Act, § 213.055, RSMo et seq.
   
C. "Garden variety" emotional distress under the Missouri Human Rights Act, § 213.055, RSMo et seq., need not be supported by expert testimony. State ex rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. banc 2006).
   
D. This instruction is based on Hervey v. Mo. Department of Corrections, 379 S.W.3d 156 (Mo. banc 2012), wherein the court required that the issue as to whether or not plaintiff was a member of a protected class be set forth in this instruction if it is a disputed element. While Hervey addressed a disability discrimination cause of action, the holding in this regard is applicable to other protected classifications where membership in that class is in dispute. See Note on Use 2 to MAI 38.01(A). Use this instruction only for disability discrimination claims where the issue of disability is disputed. Where plaintiff’s disability is not in dispute use MAI 38.01(A).
   
E. "Disability" is statutorily defined for purposes of the Missouri Human Rights Act in § 213.010(4), RSMo. For a thorough discussion of the definition of "disability" within the context of a Missouri Human Rights Act claim, see Wells v. Lester E. Cox Medical Centers, 379 S.W.3d 919 (Mo. App. 2012), where the court addressed that issue as well as the meaning of "reasonable accommodation." The court also questioned whether the Missouri Human Rights Act provides for the use of any affirmative defense. The Committee takes no position on the availability of affirmative defenses in Missouri Human Rights Act cases.
   
F. Thomas v. McKeever’s Enterprises, Inc., 388 S.W.3d 206 (Mo. App. 2012), addressed the issue of causation in a Missouri Human Rights Act claim in view of the trial court’s attempt to provide the jury with a curative instruction based upon a "but for" argument in closing. In reversing the trial court, the court in Thomas stated:
   

The trial court’s wording of the but for issue – "but for… their age…, they would not have terminated" - effectively told the jury that it would not be enough for Appellants to prove that their age was an actual contributing cause of their discharge. Under the law, Appellants could prevail if the jury believed that age was a "contributing factor" in their discharge; this oral instruction said that they could prevail only if the jury believed that their age was the cause, in and of itself, of their discharge. Thomas, 388 S.W.3d at 216.
   

The court acknowledged that terms such as "but for causation" are not to be used when instructing the jury as it creates the potential for confusion. It is generally error for a trial court to attempt to instruct the jury on "but for causation."