NEGLIGENCE Part 1: The Elements and Establishing a Duty

January 11th, 2016

By: Benjamin A. McBride and Heather Rooney McBride


The State of Missouri is not unique in its theories of recovery if damages have been sustained as a result of the negligence of another. To do so, however, a claimant must be able to prove his or her case according to the precedent established by our Court system.


In Missouri, in order to recover damages on a theory of negligence, a claimant must show that: (1) a duty existed between the parties, (2) a breach of that duty occurred, (3) the breach of that duty was the proximate cause of the resulting injury, and (4) actual damages resulted. Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426 (Mo. 1985).


After sustaining an injury, the first legality is determining whether a duty existed between the parties. Generally, to be found liable for a negligent act or omission to act, it must be found that the wrongdoer owed a legal duty to the claimant to prevent him or her from injury. Such a legal duty may be owed to another if (1) prescribed by Missouri statute or regulation, (2) the law imposes a duty based on the relationship between the parties, or (3) a party has assumed the duty by a contract. Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259 (Mo. Ct. App. W.D. 2002).


For example, the operation of a motor vehicle creates a duty between the operator and all other vehicles or pedestrians. As such, an operator of a motor vehicle owes to all others a duty to operate that motor vehicle with the highest degree of care. If an individual fails to operate a motor vehicle with the highest degree of care and, as a result, injures another, he or she may have breached his or her duty to operate a motor vehicle with the proper standard of care and may be found liable for any personal injury or property damage which results.


If you have been a victim under such a circumstance, please contact Rooney McBride & Smith, LLC at (417) 708-9681 to schedule a free consultation with Attorney Benjamin McBride.