NEGLIGENCE Part 2: Was There a Breach of Duty?

By:  Benjamin A. McBride and Heather Rooney McBride

 

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).  Upon establishing that a duty existed between the parties, a claimant must then prove that a breach of the duty occurred or, in other words, that the opposing party is liable.

 

Under Missouri law, liability is found when a claimant is subjected to injury upon an act or omission which violates the applicable standard of care.  The standard of care applicable to a claimant’s situation or circumstance varies and relies on the type of relationship the plaintiff had with the wrongdoer.  Davidson v. Otis Elevator Co., 811 S.W.2d 802 (Mo. Ct. App. E.D. 1991).  The Missouri Approved Jury Instructions divide the applicable standards of care into three categories; (1) ordinary care, (2) the highest degree of care, and (3) failure to use the degree of ordinary skill and learning accepted in a certain profession.  MAI 11.02 I, 11.03, 11.05, 11.06, and 11.07.

 

The “ordinary care” standard is set forth in MAI 11.02 I, which states that, “[t]he term “negligent” or “negligence” … means the failure to use that degree of care that an ordinarily careful person would use under the same or similar circumstances.”  MAI 11.05 further provides that ordinary care is “that degree of care that an ordinarily careful person would use under the same or similar circumstances.”

 

The ordinary care standard would most likely be applied in circumstances involving the careful maintenance of a residential pool or the security provisions applied to keep children away from the premises.  An appropriate assumption could be made that an ordinary person would foresee that, without a “no diving” notice, children might be tempted to dive into a shallow pool and could consequently sustain serious injury.  Likewise, it is also safe to say that an ordinary person would foresee that a residential pool might be alluring to a child and, without proper fencing or other security measures, the child might be harmed.  The failure to use ordinary care under these circumstances may subject a property owner to liability if such an injury should occur.

 

The “highest degree of care” standard is set forth in MAI 11.03, which states that, “[t]he term “negligent” or “negligence” … means the failure to use the highest degree of care.  The phrase “highest degree of care” means that degree of care that a very careful person would use under the same of similar circumstances.”

 

In Missouri, an operator of a motor vehicle on our public streets and highways is under a duty to exercise “the highest degree of care” at all times during the operation of his or her motor vehicle.  That duty is defined as “that degree of care that a very careful driver would use under the same or similar circumstances.”  MAI 11.03.  If an operator of a motor vehicle fails to exercise the highest degree of care in the operation of his or her vehicle and causes a collision, the operator was negligent when he or she caused the motor vehicle to collide with a claimant’s motor vehicle, thus making the operator liable for the claimant’s resulting property damage and/or injury.

 

The failure to use the degree of ordinary skill and learning accepted in a certain profession standard is set forth in MAI 11.06, which states that “[t]he term “negligent” or “negligence” … means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession.”

 

This standard of care is most often used in medical malpractice cases and requires a claimant to show that his or her physician failed to use the degree of skill and learning ordinarily used in his or her practice area.  For example, if a doctor failed to properly diagnose a condition, which led to injury or death the claimant would otherwise not have sustained, and it is shown that the doctor failed to use the proper resources in making his or her diagnosis, a trier of fact could find that the doctor failed to use the degree of skill and learning ordinarily used in his or her practice area, subjecting the doctor to liability for the claimant’s resulting injury or death.

 

In sum, the determination of liability is premised on the circumstance leading to the claimant’s injury.  To recover in a negligence claim, it is of upmost importance that your attorney has a working knowledge of these different standards of care.

 

If you have been the victim and sustained injury or property damage due to another’s failure to use the applicable degree of care, please contact Rooney McBride & Smith, LLC at (417) 708-9681 to schedule a free consultation.