affirmative converse instruction in Missouri

2024“The affirmative converse instruction is not to be used merely as a means of conversing, in different language, the very same issue submitted in the verdict director instruction.” Id. at 735 .

2022“The affirmative converse instruction is not to be used merely as a means of conversing, in different language, the very same issue submitted in the verdict director instruction.” Id. at 735 .

2003Morse v. Johnson, 594 S.W.2d 610, 614 (Mo. banc 1980); Oliver v. Bi-State Development Agency, 494 S.W.2d 49, 52 (Mo.1973); Tierney v. Berg, 679 S.W.2d 919, 921 (Mo.App.

1990MAI 33.05(1), Notes On Use (1988 New); Morse v. Johnson, 594 S.W.2d 610, 614 (Mo.banc 1980); Powers v. Ellfeldt, supra, at 145 .

1992“An affirmative converse instruction must submit an “hypothesized ultimate issue which, if true, would defeat plaintiff’s claim.” ” Shepard v. Ford Motor Co., 457 S.W.2d 255, 258 (Mo.App.1970) (quoting MAI 33.01). *262 “The function of the affirmative converse is to permit the defendant to submit his theory of the case without being required to directly negative the plaintiffs theory.” [citation omitted].

1973Defendant acknowledges that its instruction 3 is a “third method” converse, and asserts that it is authorized by MAI, because it “ * * * properly converse [s] the two ultimate issues submitted by plaintiff.” Defendant argues that the instruction not only requires the jury to disbelieve plaintiff’s version of the accident, but to “affirmatively believe” defendant’s version. “ * * * [Defendant's argument ignores the underlying requirement that an affirmative converse instruction must submit an ‘hypothesized ultimate issue which, if true, would defeat plaintiff’s claim.’ ” Shepard v. Ford Motor C

2003Morse v. Johnson, 594 S.W.2d 610, 614 (Mo. banc 1980); Oliver v. Bi-State Development Agency, 494 S.W.2d 49, 52 (Mo.1973); Tierney v. Berg, 679 S.W.2d 919, 921 (Mo.App.

1994Hiers, 834 S.W.2d at 735-36 ; Tierney v. Berg, 679 S.W.2d 919, 921 (Mo.App.1984).

2016Agency, 494 S.W.2d 49, 52 (Mo. 1973) (internal quotation marks and citations omitted).

2016An affirmative converse instruction “is not to be used where, as here, there is not an ultimate issue to submit which would defeat plaintiff’s claim.” Id. at 52 .

1992Stover v. Patrick, 459 S.W.2d 393, 396 (Mo. banc 1970).

1990Stover v. Patrick, supra, at 396; Weir v. Wilmes, supra, at 55.

1990Stover v. Patrick, supra, at 396; Weir v. Wilmes, supra, at 55.

1989Stover v. Patrick, 459 S.W.2d 393, 396 (Mo. banc 1970); Weir v. Wilmes, 688 S.W.2d 53, 55 (Mo.App.1985).

2023See Drury, 905 S.W.2d at 147 (finding an affirmative converse instruction about an employee’s negligence was not warranted where that employee’s negligence was already submitted in the verdict director’s causation element).

2006In a sense, the burden on the defendant created by an affirmative converse instruction is greater than that created by a true converse instruction in that “[a]n affirmative converse instruction must submit a hypothesized ultimate fact issue which, if true, negates plaintiffs claim.” Drury, 905 S.W.2d at 146-47 .

2023“The facts hypothesized in an affirmative converse instruction must be sufficient in law to defeat the plaintiff’s claim.” Id. at 209 .

2023“A defendant may submit his theory of the case through the use of an affirmative converse instruction.” Id.

1992Co., 817 S.W.2d 556, 561-62 (Mo. App.1991); and Murphy v. City of Springfield, 794 S.W.2d 275, 287 (Mo.App.1990) (if given, an affirmative converse instruction would have been error).

1992The Notes on Use for MAI 33.05(1) [1988 New] state that “[t]he affirmative converse instruction should not be used to submit in the affirmative the same issue as has already been submitted in the verdict instruction.” City of Springfield, 794 S.W.2d at 287 .

2023See Clark, 731 S.W.2d at 472 . 15 Clark noted that MAI 1.03 prohibits sole cause instructions “but further provides that a converse instruction may adequately present the same defense.” Id. (citing MAI 1.03 Committee Comment A.3).

2023In Clark, we explained that “[t]his [C]ourt has previously stated that proximate cause may be conversed by an affirmative converse instruction where the evidence supports that an intervening cause . . . . is the direct cause of the injury.” Id. (internal citation omitted).

2023See Medley, 460 S.W.3d at 500 (citing Hiers, 834 S.W.2d at 734–35) (additional citations omitted).

2015Hiers, 834 S.W.2d at 735 ; Quinn v. Lenau, 996 S.W.2d 564, 570 (Mo.App.E.D.1999).

2014See Walton v. City of Seneca, 420 S.W.3d 640, 645 (Mo.App.S.D.2013). 2 .

2014We note that, while an affirmative converse instruction is approved by the MAI and may be appropriate in limited situations, "its use is fraught with peril.” Walton v. City of Seneca, 420 S.W.3d 640 , 650 n. 11 (Mo.App.S.D.2013) (citing Hiers, 834 S.W.2d at 735 ).

2014This is *780 because the affirmative converse "tends to resemble a prohibited sole cause instruction, it often is a resubmission of the issues found in the verdict director, and it tends to mislead thejury.” Jone v. Coleman Corp., 183 S.W.3d 600, 605 (Mo.App.E.D.2005) (citing Hiers, 834 S.W.2d at 735-36 ).

2014“In a negligence case, an affirmative converse instruction presents a hypothetical ultimate issue which, if true, renders it impossible for the jury to find the defendant negligent as a matter of law.” Blackstock v. Kohn, 994 S.W.2d 947, 951 (Mo. banc 1999).

2014“Although not favored, an affirmative converse instruction is appropriate where the verdict director assumes as true or omits a disputed ultimate issue.” Id. (citing Hiers, 834 S.W.2d at 735 ). 5 *780 As an initial matter, we address Defendant’s assertion that Plaintiffs objection to Instruction No. 9 was not specific and therefore preserved nothing for review.

2013It instead cites only the general proposition that “failing to request a modified instruction can be considered in determining whether an instruction is prejudicial.” Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 329 (Mo.App.

2013See Twin Chimneys, 168 S.W.3d at 498 .

2013To be entitled to such relief, Plaintiff must show “a substantial indication of prejudice.” Twin Chimneys, 168 S.W.3d at 498 .

2013Her first point asserts the affirmative converse instruction erroneously defined “ ‘property 5 ” as “property over which [City] had ‘exclusive control, possession, authority and the ability to oversee, monitor and to exclude unauthorized persons’ ” “because under the sovereign immunity waiver statute[,] [section] 53[7].600.1(2)[,] ‘property’ belongs to a public entity if the public entity ‘actually owned’ or ‘exercised possession and control rising to the level of an ownership interest’ over the property[.]” 1 Point II claims the converse instruction “did not submit an issue that, even if true

2013Her first point asserts the affirmative converse instruction erroneously defined “ ‘property 5 ” as “property over which [City] had ‘exclusive control, possession, authority and the ability to oversee, monitor and to exclude unauthorized persons’ ” “because under the sovereign immunity waiver statute[,] [section] 53[7].600.1(2)[,] ‘property’ belongs to a public entity if the public entity ‘actually owned’ or ‘exercised possession and control rising to the level of an ownership interest’ over the property[.]” 1 Point II claims the converse instruction “did not submit an issue that, even if true

2013City also cites City of Kennett v. Akers, 564 S.W.2d 41, 50 (Mo. banc 1978), where the defendant appealed a damages instruction as being too general, and the court stated that “[i]f defendant felt it too general, it was incumbent upon him to submit an explanatory or modifying instruction.” Here, Plaintiff objected to the giving of an affirmative converse instruction, an instruction which “is not favored[.]” Hiers, 834 S.W.2d at 735 .

1993An affirmative converse jury instruction must submit a “hypothesized ultimate issue which, if true, would defeat plaintiff’s claim_ The facts hypothesized in an affirmative converse instruction must be sufficient in law to defeat the plaintiff’s claim.” MAI-4th 33.01 at 466 (1991); MFA Inc. v. Dettler, 817 S.W.2d 658, 663 (Mo.App.1991).