comparative fault instruction in Missouri

2018See Coomer , 437 S.W.3d at 194 ("[W]hen the plaintiff is injured by the defendant's negligence, this Court holds that the adoption of comparative fault in [ Gustafson v. Benda , 661 S.W.2d 11 , 13 (Mo. banc 1983) ] precludes any consideration of the plaintiff's conduct in assuming that risk (i.e., implied secondary assumption of the risk) except as a partial defense under a proper comparative fault instruction." In this case, a comparative fault instruction was properly submitted to the jury, but the jury returned a verdict apportioning 100% of the fault to Fiesta.

2018After Missouri adopted comparative fault in Gustafson v. Benda , 661 S.W.2d 11 , 13 (Mo. banc 1983), the idea of implied secondary assumption of risk has been relevant only to the extent it establishes the plaintiff was partially at fault for an injury, which a jury considers under a comparative fault instruction.

1995“Under comparative negligence in Missouri any error in giving a comparative fault instruction is harmless if the jury finds no negligence on the part of the defendant.” Duren v. Kunkel, 849 S.W.2d 145, 147 (Mo.App.1993) (citing Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986)).

1991The jury found that neither defendant was at fault in the death of Mrs. Kim. “[A]n error in giving a comparative fault instruction is harmless if the jury found no negligence on the part of defendant[s].” Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986), citing Koch v. Bangert Bros.

1987Hereinafter "respondent" refers only to Linda Basse. [2] In Lee v. Mirbaha, 722 S.W.2d 80 (Mo. banc 1986), the issue raised by the plaintiff was that the trial court erred in submitting a comparative fault instruction on plaintiff's failure to exercise his fingers after surgery, which contributed to his damages.

1987In Lee v. Mirbaha, 722 S.W.2d 80 (Mo. banc 1986), the issue raised by the plaintiff was that the trial court erred in submitting a comparative fault instruction on plaintiff's failure to exercise his fingers after surgery, which contributed to his damages.

1991The trial court, in Barnes , also submitted a separate comparative fault instruction (Instruction No. 8) which began: “You must assess a percentage of fault against the plaintiff if you believe....” Id.

1987In a companion case, the court addressed the prejudicial effect of the giving of a comparative fault instruction in a strict products liability case, stating: “Unless it can be said that this instruction did not contribute to the general verdict for the defendant reversal would be required.” Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518, 521 (Mo. banc 1986).

2024See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo. App. W.D. 2012) (“‘Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party.’”); Marion v. Marcus, 199 S.W.3d 887, 896 (Mo. App. W.D. 2006) (Because the jury returned a verdict in favor of defendants, “‘the jury was never required to reach the question of apportionment of fault.’ Therefore, although the instruction contained an error, the jury never needed to consider the erroneous instruction.

2017See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo. App. W.D. 2012) (“‘Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party.’ ”); Marion v. Marcus, 199 S.W.3d 887, 896 (Mo. App. W.D. 2006) (Because the jury returned a verdict in favor of defendants, “ ‘the jury was never required to reach the question of apportionment of fault.’ Therefore, although the instruction contained an error, the jury never needed to consider the erroneous instruction.

2024Anesthesia Assocs., Ltd., 245 S.W.3d 267, 279 (Mo. App. E.D. 2008) (“The absence of any assessment of fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo. App. S.D. 2010)[] (“[T]he verdict in this case, finding zero fault in Respondent, negates any allegation of error in giving a comparative fault instruction.”).

2017Anesthesia Assocs., Ltd., 245 S.W.3d 267, 279 (Mo. App. E.D. 2008) (“The absence of any assessment of fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo. App. S.D. 2010) 2 (“[T]he verdict in this case, finding zero fault in Respondent, negates any allegation of error in giving a comparative fault instruction.”).

1996Secondly, “[u]nder Missouri’s comparative negligence doctrine, error in giving a comparative fault instruction is harmless when the jury apportions no percentage of fault to the defendant.” Long v. Twehous Contractors, Inc., 904 S.W.2d 285, 288 (Mo.App.1995) (quoting Vasseghi v. McNutt, 811 S.W.2d 453, 455 (Mo.App.1991)).

1995“Under Missouri’s comparative negligence doctrine, error in giving a comparative fault instruction is harmless when the jury apportions no percentage of fault to defendant.” Vasseghi v. McNutt, 811 S.W.2d 453, 455 (Mo.App.1991).

1994Mino v. Porter Roofing Co., Inc., 785 S.W.2d 558, 562 (Mo.App.1990); Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986).” Other cases consistent with the holding in Vasseghi include Wilson v. Shanks, 785 S.W.2d 282 , 284—285[1] (Mo. banc 1990); Lee v. Mirbaha, 722 S.W.2d 80, 83-84 [1] (Mo. banc 1986); Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518, 520-522 [l-3] (Mo. banc 1986); Woodiel v. Barclay Enterprises, Inc., 858 S.W.2d 247, 254 [10] (Mo.App.1993); Hawk v. Union Elec.

1994Mino v. Porter Roofing Co., Inc., 785 S.W.2d 558, 562 (Mo.App.1990); Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986).

2008As noted by Thompson: Ultimately, the court affirmed the decision of the trial court not to submit the comparative fault instruction, because at that time, Lippard v. Houdaille Industries, 715 S.W.2d 491 (Mo. banc 1986), held that products liability cases could be submitted to the jury on an "all or nothing at all basis.” Earll, 714 S.W.2d at 937 .

2006Ultimately, the court affirmed the decision of the trial court not to submit the comparative fault instruction, because at that time, Lippard v. Houdaille Industries, 715 S.W.2d 491 (Mo. banc 1986), held that products liability cases could be submitted to the jury on an "all or nothing at all basis.” Earll, 714 S.W.2d at 937 .

2003The comparative fault instruction stated: “In your verdict ... you must assess a percentage of fault to plaintiff Ivan Wilson, whether or not defendant was partly at fault, if you believe ... [s]uch negligence of [p]laintiff Ivan Wilson directly caused or directly contributed to the cause of any damage [p]laintiff Ivan Wilson may have sustained.” Id.

1994This court refused to consider the claim of instructional error since the plaintiff had failed to show prejudice, holding that any error in submitting the instruction was harmless in that the jury assessed no fault to the defendants: The court must assume that the jury followed the instructions and, applying the rationale of Shanks [Wilson v. Shanks, 785 S.W.2d 282 (Mo. banc 1990) ], when the jury in this case decided the defendants were not liable under the verdict directing instruction, the jury was not required to consider [the plaintiffs] conduct under the comparative fault instruction.

2024See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo. App. W.D. 2012) (“‘Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party.’”); Marion v. Marcus, 199 S.W.3d 887, 896 (Mo. App. W.D. 2006) (Because the jury returned a verdict in favor of defendants, “‘the jury was never required to reach the question of apportionment of fault.’ Therefore, although the instruction contained an error, the jury never needed to consider the erroneous instruction.

2017See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo. App. W.D. 2012) (“‘Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party.’ ”); Marion v. Marcus, 199 S.W.3d 887, 896 (Mo. App. W.D. 2006) (Because the jury returned a verdict in favor of defendants, “ ‘the jury was never required to reach the question of apportionment of fault.’ Therefore, although the instruction contained an error, the jury never needed to consider the erroneous instruction.

2024Anesthesia Assocs., Ltd., 245 S.W.3d 267, 279 (Mo. App. E.D. 2008) (“The absence of any assessment of fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo. App. S.D. 2010)[] (“[T]he verdict in this case, finding zero fault in Respondent, negates any allegation of error in giving a comparative fault instruction.”).

2017Anesthesia Assocs., Ltd., 245 S.W.3d 267, 279 (Mo. App. E.D. 2008) (“The absence of any assessment of fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo. App. S.D. 2010) 2 (“[T]he verdict in this case, finding zero fault in Respondent, negates any allegation of error in giving a comparative fault instruction.”).

2023Jude Med., Inc., 559 S.W.3d 923, 925 (Mo. App. E.D. 2018)).

2023Jude Med., Inc., 559 S.W.3d 923, 925 (Mo. App. E.D. 2018) (applying de novo review to the circuit court’s refusal of a comparative fault instruction). 3 Denney also objected to Instruction 8, Instruction 10, and the verdict form, each of which referenced comparative fault. 3 Rule 70.03 establishes the requirements for preserving claims of instructional error.

1995See also, Woodiel v. Barclay Enters., Inc., 858 S.W.2d 247 (Mo.App.1993); Titsworth v. Powell, 776 S.W.2d 416 (Mo.App.1989); Biever v. Williams, 755 S.W.2d 291 (Mo.App.1988).

1994Mino v. Porter Roofing Co., Inc., 785 S.W.2d 558, 562 (Mo.App.1990); Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986).” Other cases consistent with the holding in Vasseghi include Wilson v. Shanks, 785 S.W.2d 282 , 284—285[1] (Mo. banc 1990); Lee v. Mirbaha, 722 S.W.2d 80, 83-84 [1] (Mo. banc 1986); Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518, 520-522 [l-3] (Mo. banc 1986); Woodiel v. Barclay Enterprises, Inc., 858 S.W.2d 247, 254 [10] (Mo.App.1993); Hawk v. Union Elec.

1989Finninger v. Johnson, 692 S.W.2d 390, 394 (Mo.App.1985).

1987Finninger v. Johnson, 692 S.W.2d 390, 394 (Mo.App.1985).

2023See Egelhoff v. Holt, 875 S.W.2d 543, 547 (Mo. banc 1994).

2006“A comparative fault instruction must be supported by substantial evidence.” Id. (citing Egelhoff, 875 S.W.2d at 548 ).

2008“A comparative fault instruction must be supported by substantial evidence.” Id. (citing Egelhoff [v. Holt], 875 S.W.2d [543] 548 [(Mo.1994)]).

2008"A comparative fault instruction must be supported by substantial evidence." Id. (citing Egelhoff [v. Holt], 875 S.W.2d [543] 548 [(Mo. 1994)]).

2006Penney Co., 741 S.W.2d 28, 29-30 (Mo. banc 1987), which held that a jury instruction which considered a plaintiffs failure to exercise ordinary care in discovering an obvious danger on a property was impermissible as a vestige of contributory negligence in that Missouri had adopted the doctrine of comparative fault.

1989Penney Co., Inc., 741 S.W.2d 28 (Mo. banc 1987), our Supreme Court held that their earlier adoption of the comparative fault doctrine in Gustafson modified the common law relationship between business inviters and their invitees, stating as follows: Under comparative fault, we leave to juries the responsibility to assess the relative fault of the parties in tort actions.

2020In Smith v. Quallen, 27 S.W.3d 845 (Mo. App. 2000), the plaintiff argued that a comparative-fault instruction submitting following too closely was not supported by evidence of causation.

2001“When the issue on appeal is the sufficiency of the evidence to support the trial court’s submission of comparative fault to the jury, all the evidence and favorable inferences from the evidence are considered to the extent they support the submission.” Smith v. Quallen, 27 S.W.3d 845, 847 (Mo.App.

2012R.R., 769 S.W.2d 99, 104 (Mo. banc 1989) (holding that the defendant’s comparative fault instruction was supported by the evidence and the trial court did not err in submitting it).

2000Egelhoff, 875 S.W.2d at 548 (citing Vandergriff, 769 S.W.2d at 104 ).

2009Defendant contends that even if the comparative fault instruction were erroneous (which she denies), any claimed instructional error in that instruction “is ... of no practical consequence or significance” because the jury assessed plaintiffs damages at “none.” Tauchert v. Ritz, 909 S.W.2d 687, 691 (Mo.App.1995), holds otherwise.

2009It appears that Instruction No. 9 is based on MAI 32.01(1), a comparative fault instruction directed to a single negligent act. [2] Defendant contends that even if the comparative fault instruction were erroneous (which she denies), any claimed instructional error in that instruction "is ... of no practical consequence or significance" because the jury assessed plaintiff's damages at "none." Tauchert v. Ritz, 909 S.W.2d 687, 691 (Mo.App. 1995), holds otherwise. [1] The driver's guide was not provided in the record, but we were able to discern the relevant portions from the testimony at trial.

2003Inman v. Bi-State Development Agency, 849 S.W.2d 681, 684 (Mo.App.1993); Titsworth v. Powell, 776 S.W.2d 416, 423 (Mo.App.1989).

1995See also, Woodiel v. Barclay Enters., Inc., 858 S.W.2d 247 (Mo.App.1993); Titsworth v. Powell, 776 S.W.2d 416 (Mo.App.1989); Biever v. Williams, 755 S.W.2d 291 (Mo.App.1988).

1999Id., Frazier v. Emerson Electric Co., 867 S.W.2d 700, 702 (Mo.App.

1994We are mindful that since Vinson, the Eastern District of this Court has decided Frazier v. Emerson Electric Co., 867 S.W.2d 700 (Mo.App.E.D.1993), holding that appellants who accepted the amount of a judgment in a wrongful death action were not barred from asserting on appeal that the trial court erred in giving a comparative fault instruction.

1996Young v. Kansas City Power and Light Co., 773 S.W.2d 120, 125 (Mo.App.1989).

1994Young, 773 S.W.2d at 125 .

1995The situation is closely analogous to those found in Duren v. Kunkel, 849 S.W.2d 145 (Mo.App.1993) [4-6]; Insurance Company of North America v. Skyway Aviation, Inc., 828 S.W.2d 888 (Mo.App.1992) [4-6]; Hyman v. Robinson, 713 S.W.2d 300 (Mo.App.1986) [1, 2], In those cases the jury found no negligence by defendant, therefore no prejudice arose because of a faulty comparative instruction.

1995“Under comparative negligence in Missouri any error in giving a comparative fault instruction is harmless if the jury finds no negligence on the part of the defendant.” Duren v. Kunkel, 849 S.W.2d 145, 147 (Mo.App.1993) (citing Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986)).

1995See also, Woodiel v. Barclay Enters., Inc., 858 S.W.2d 247 (Mo.App.1993); Titsworth v. Powell, 776 S.W.2d 416 (Mo.App.1989); Biever v. Williams, 755 S.W.2d 291 (Mo.App.1988).

1989In Biever v. Williams, 755 S.W.2d 291, 294 [4] (Mo.App.1988), the court held that the Bievers had no basis to complain of a comparative fault instruction, because they suffered no prejudice since the jury found Mrs. Biever to have been 100% at fault with no fault to Williams.

2024Savage v. Kansas City Power & Light Co., 515 S.W.3d 778, 783-84 (Mo. App. W.D. 2017) (footnote omitted).

2024Savage, 515 S.W.3d at 785 .