NEGLIGENCE Part 4: Damages – By: Benjamin A. McBride & Heather Rooney McBride

May 31st, 2016



Part 4: Damages

By:  Benjamin A. McBride & 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).

In Parts 1, 2 and 3, we discussed what creates a duty, whether a breach of that duty has occurred, and whether there was a causal connection between the duty breached and the resulting injuries.  If those three elements are met, a trier of fact must next determine whether actual damages resulted from the breach of duty.  In Missouri, there are several categories of damages available to a claimant, such as actual damages, special damages, real property damages, and personal property damages.

Actual damages are compensatory damages and determined by the loss or injury sustained.  Hussey v. Ellerman, 215 S.W.2d 38 (Mo. Ct. App. 1948).  To recover actual damages due to the negligent act of another, the claimant must trace the wrongful act to the damage resulting, as well as provide evidence that the wrongful act was the cause of the damage, as opposed to some other independent origin.  Shannon v. Welch, 858 S.W.2d 748 (Mo. Ct. App. W.D. 1993).

Special damages are those types of damage that arise from the special circumstances of a matter, not as a necessary result of the wrongful act.  Porter v. Crawford & Co., 611 S.W.2d 265 (Mo. Ct. App. W.D. 1980).  To recover special damages, Rule 55.19 of the Missouri Rules of Civil Procedure requires that such damages be specifically pled.  Mo. R. Civ. Pro. 55.19.  Therefore, damages that are alleged to have been sustained as a result of the circumstances of the wrongful act (i.e. attorney fees, court costs, etc.) must be specifically plead and proved.

Real property includes land and anything growing on, attached to, or erected on it.  Black’s Law Dictionary, New Pocket Edition, 1996.  The measure of damages to real property is generally determined by measuring the difference in the fair market value of the property immediately before and after the occurrence of the wrongful act at issue.  Curtis v. Fruin-Colnon Contracting Co., 253 S.W.2d 158 (Mo. 1952).

Personal property is any moveable or intangible thing that is subject to ownership and not classified as real property.  Black’s Law Dictionary, New Pocket Edition, 1996.  Like real property, the measure of damages to personal property is the difference between the fair market value immediately before and after the wrongful act causing the damage.  Groves v. State Farm Mut. Auto Ins. Co., 540 S.W.2d 39 (Mo. 1979).

In sum, to recover under a theory of negligence, some damage must have resulted and the cause of the damage must be proximately related to the negligent act of the tortfeasor.  If you believe that you have been a victim of the negligent act of another, contact ROONEY MCBRIDE & SMITH, LLC to schedule your free consultation with an attorney.