537.765. Contributory fault as complete bar to plaintiff's recovery abolished — doctrine of comparative fault to apply — fault of plaintiff an affirmative defense to diminish damages — fault defined. — 1. Contributory fault, as a complete bar to plaintiff's recovery in a products liability claim, is abolished. The doctrine of pure comparative fault shall apply to products liability claims as provided in this section.
2. Defendant may plead and prove the fault of the plaintiff as an affirmative defense. Any fault chargeable to the plaintiff shall diminish proportionately the amount awarded as compensatory damages but shall not bar recovery.
3. For purposes of this section, "fault" is limited to:
(1) The failure to use the product as reasonably anticipated by the manufacturer;
(2) Use of the product for a purpose not intended by the manufacturer;
(3) Use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger;
(4) Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger;
(5) The failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or
(6) The failure to mitigate damages.
Notes of Decisions
Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. Ct. App. 2006).
· cites it 17× “1994) (discussed infra), as applying to negligence claims, the court noted that contributory fault as a complete bar to a plaintiffs strict product liability claim was abolished after the enactment of section 537.765, RSMo, in 1987, and that the doctrine of comparative fault…”
Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748 (Mo. Ct. App. 2008).
· cites it 16× “[120] The doctrine of comparative fault is codified in section 537.765, RSMo 2000. [121] Given that the issue is resolved, as discussed infra, utilizing Missouri law, cases from outside jurisdictions are of little probative value.”
Egelhoff v. Holt, 875 S.W.2d 543 (Mo. 1994).
· cites it 16× “Lippard was decided, however, prior to the enactment of section 537.765, RSMo Supp. 1993, which specifically authorizes fault apportionment in product liability cases.”
Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302 (Mo. Ct. App. 2003).
· cites it 5× “Point II argues the trial court erred in not instructing the jury on comparative fault because “Section 537.765 RSMo. dictates that ‘pure comparative fault shall apply to products liability claims as provided [therein].”
Lay v. P & G Health Care, Inc., 37 S.W.3d 310 (Mo. Ct. App. 2000).
· cites it 4× “Lay argued in his motion that Schindler failed to plead the specific statute under comparative fault, and that it failed to plead the specific subsections under § 537.765. Further, he asked the court to preclude all evidence of comparative fault because it was outside the scope…”
Miller v. Varity Corp., 922 S.W.2d 821 (Mo. Ct. App. 1996).
· cites it 6× “Section 537.765, RSMO 1994, provides, in pertinent part: 1.”
Morrison v. Kubota Tractor Corp., 891 S.W.2d 422 (Mo. Ct. App. 1994).
· cites it 4× “02 (Comparative Fault — Required Change of Former Contributory Negligence Instruction to Submit Plaintiffs Comparative Fault), modified to submit the plaintiffs comparative fault under one of the defenses established by § 537.765, RSMo Supp.1990. 817 S.W.2d at 500-01 .”
LaHue v. Gen. Motors Corp., 716 F. Supp. 407 (W.D. Mo. 1989).
· cites it 4× “Mo. Rev.Stat. § 537.765. The Missouri Supreme Court had adopted it judicially in Gustafson .”
Gamble v. Bost, 901 S.W.2d 182 (Mo. Ct. App. 1995).
· cites it 3× “Section 537.765 RSMo 1994, applicable to products claims, provides that assumption of the risk, although included in the concept of fault, is not to be treated as a complete bar to plaintiff’s recovery, but instead is to be treated as a basis for proportionate diminution of the…”
Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359 (Mo. Ct. App. 1999).
· cites it 4× “*362 A jury instruction pursuant to § 537.765 1 assessing comparative fault on Barbara Ger-ow had been tendered by Chrysler and refused by the court.”
Johnson v. Hyster Co., 777 S.W.2d 281 (Mo. Ct. App. 1989).
· cites it 3× “banc 1986), and the passage of § 537.765, RSMo 1987 Supp. Lippard held that comparative fault was not applicable to a product liability case but § 537.”
— Mo. Rev. Stat. § 537.765(2) — 1 case
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