Supreme Court of Missouri
en banc

IN RE: REVISIONS AND ADDITIONS TO MAI-CIVIL


MAI 21.04 DAMAGES – ACTIONS AGAINST HEALTH CARE PROVIDERS -    

  COMPARATIVE FAULT

(Notes on Use – Revision)

MAI 31.14 VERDICT DIRECTING – COMMITMENT FOR MENTAL ILLNESS
(Instruction – Revision)
(Notes on Use – Revision)
(Committee Comment – New)

MAI 37.03 COMPARATIVE FAULT – DAMAGES
(Notes on Use – Revision)

MAI 37.08 COMPARATIVE FAULT – DAMAGES – PERSONAL INJURY AND
 LOSS OF CONSORTIUM, LOSS OF SERVICES OR MEDICAL
 EXPENSES – SPOUSE OR CHILD INJURED
(Notes on Use – Revision)


1.  Revisions and additions to 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 as set forth in the specific exhibits attached hereto must be used on and after July 1, 2000, 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.

Day – to – Day

________________________________
WILLIAM RAY PRICE, JR.
Chief Justice


21.04 [1988 New] Damages – Actions Against Health Care Providers –
Comparative Fault


1.  Insert if more than one defendant.

2.  This may be added if supported by the evidence.

3.  When the term “occurrence” must be modified, substitute some descriptive phrase that specifically describes the compensable event or conduct.  The term “occurrence” may be modified in any case where the evidence discloses more than one event or health care provider claimed to have caused injury or damage.  The first example in Note 3 of MAI 4.01, “ . . .  as a direct result of the conduct of defendant as submitted in Instruction Number _____”, is not appropriate in a comparative fault case because the jury is instructed to determine “total damages,” which are obviously the direct result of the conduct of both the defendant and the plaintiff.  The above-quoted example would inappropriately restrict the jury’s assessment of damages to those damages solely caused by defendant’s conduct.
In a case such as Carlson v. K-Mart Corp., 979 S.W.2d 145 (Mo. banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from this instruction and substitute the phrase “which (describe the compensable event or conduct) directly caused or directly contributed to cause.”

For further discussion see MAI 37.03 and MAI 4.01.

31.14 [2000 Revision] Verdict Directing – Commitment for Mental Illness

Your verdict must be that respondent should be detained for treatment if you believe:
First, respondent is mentally ill,1 and
Second, as a result of such mental illness,1 respondent presents a substantial risk of serious physical harm to [himself] [others].2

1.  The phrases “mentally ill” and “mental illness” must be defined.  See definition in MAI 16.07.

2.  Select the term supported by the evidence.  If both are supported by the evidence, they may be submitted in the alternative.


On hearings for commitment for treatment and extensions of commitments there are three questions of fact that must be decided upon clear and convincing evidence:

1.  Is the respondent mentally ill?

2.  If so, as a result is he likely to harm himself or others?

3.  Is there an agreeing, appropriate facility for his treatment?

When a jury is called, the jury decides only the first two questions and, if both are found in the affirmative, the court must determine in the affirmative the third question of the availability of an appropriate consenting treatment facility before it can make its order of detention.
  Section 632.350, RSMo.
See Section 632.005.(9), RSMo.

37.03 [1986 New] Comparative Fault – Damages

1.  Insert if more than one defendant.

2.  This may be added if supported by the evidence.

3.  When the evidence discloses a compensable event and a non-compensable event, both of which are claimed to have caused damage, the term “occurrence” may need to be modified.  See Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo. 1971).  When the term “occurrence” is modified, substitute some descriptive phrase that specifically describes the compensable event.

The first example in Note 3 of MAI 4.01, “. . . as a direct result of the conduct of defendant as submitted in Instruction Number _____”, is not appropriate in a comparative fault case because the jury is instructed to determine “total damages,” which are obviously the direct result of the conduct of both the defendant and the plaintiff.  The above-quoted example would inappropriately restrict the jury’s assessment of damages to those damages solely caused by defendant’s conduct.

In a simple comparative fault case, the first example in Note 3 of MAI 4.01, “ . . . as a direct result of the automobile collision”, may be an appropriate modification of the word “occurrence” if plaintiff sustained damage in an automobile collision but also had a non-compensable illness.

In a case such as Carlson v. K-Mart Corp., 979 S.W.2d 145 (Mo. banc, 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from this instruction and substitute the phrase “which (describe the compensable event or conduct) directly caused or directly contributed to cause.”

In a more complex comparative fault case, it may be more appropriate to delete the entire phrase “ . . . as a direct result of the occurrence mentioned in the evidence” and substitute the phrase “which the [fault]a [condition of the product]b [failure]c of the defendant directly caused or directly contributed to cause.”

a. b. c.  Select the appropriate term.  If there is more than one defendant, or theory, more than one term may be appropriate.

a.  The term “fault” will generally be appropriate.

b.  The term “condition of the product” may be used in those cases involving product liability under MAI 25.04 and MAI 25.05.

c.  The term “failure” may be used in those cases involving submission under instructions such as MAI 22.02, MAI 22.03, MAI 22.05, MAI 22.07, and similar instructions in which the defendant’s actionable conduct is described as a “failure” as opposed to “negligence.”

Other modifications may also be appropriate.  See MAI 4.01 for further discussion.

37.08 [1991 New] Comparative Fault – Damages – Personal Injury and Loss of
Consortium, Loss of Services or Medical Expenses – Spouse or Child
Injured.

1.  Insert if more than one defendant.

2.  Select appropriate word(s).

3.  This may be added if supported by the evidence.

4.  When the evidence discloses a compensable event and a non-compensable event, both of which are claimed to have caused damage, the term “occurrence” may need to be modified.  See Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo. 1971).
 When the term “occurrence” is modified, substitute some descriptive phrase that specifically describes the compensable event.
The first example in Note 3 of MAI 4.01, “ . . .as a direct result of the conduct of defendant as submitted in Instruction Number _____”, is not appropriate in a comparative fault case because the jury is instructed to determine “total damages,” which are obviously the direct result of the conduct of both the defendant and the plaintiff.  The above-quoted example would inappropriately restrict the jury’s assessment of damages to those damages solely caused by defendant’s conduct.
In a simple comparative fault case, the first example in Note 3 of MAI 4.01, “ . . . as a direct result of the automobile collision”, may be an appropriate modification of the word “occurrence" if plaintiff sustained damage in an automobile collision but also had a non-compensable illness.

In a case such as Carlson v. K-Mart Corp., 979 S.W.2d 145 (Mo. banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from this instruction and substitute the phrase “which (describe the compensable event or conduct) directly caused or directly contributed to cause.”

In a more complex comparative fault case, it may be more appropriate to delete the entire phrase “ . . . as a direct result of the occurrence mentioned in the evidence” and substitute the phrase “which the [fault]a [condition of the product]b [failure]c of the defendant directly caused or directly contributed to cause.”

a. b. c. Select the appropriate term.  If there is more than one defendant, or theory, more than one term may be appropriate.

a.  The term “fault” will generally be appropriate.

b.  The term “condition of the product”  may be used in those cases involving product liability under MAI 25.04 and MAI 25.05.

c.  The term “failure” may be used in those cases involving submission under instructions such as MAI 22.02, MAI 22.03, MAI 22.05, MAI 22.07, and similar instructions in which the defendant’s actionable conduct is described as a “failure” as opposed to “negligence.”
Other modifications may also be appropriate.  See MAI 4.01 for further discussion.