Section 12.15 Comparative Fault Instructions

• Library: Civil Trial Practice 2015 Supp

L. (§12.15) Comparative Fault Instructions

The Supreme Court of Missouri adopted pure comparative fault in Missouri in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). Four types of instructions need to be modified for use in comparative fault cases:

1. Verdict directors

2. Affirmative defense and converse instructions

3. Damage instructions

4. Forms of verdict

The remaining instructions are essentially unchanged.

In a comparative fault case, the initial phrase of the plaintiff’s verdict director must read “In your verdict you must assess a percentage of fault to defendant [whether or not plaintiff was partly at fault] if you believe . . . .” The bracketed phrase may be used at the plaintiff’s option. The “tail” at the end of a verdict director refers the jury to an instruction that submits facts that, if believed, defeat the plaintiff’s claim. Therefore, it is appropriate only when the affirmative defense is a complete bar to the plaintiff’s claim, such as the existence of a release. Contributory negligence, while still an affirmative defense, merely reduces the plaintiff’s recovery under the comparative fault scheme. No affirmative defense tail should be used to refer to a contributory negligence instruction.

The submission of vicarious liability issues illustrates the complexity of jury instructions in comparative fault cases. Close analysis of the particular facts of the case pays off. When drafting instructions for vicarious liability cases, the appropriate modifications depend on whether both the master and servant are parties and on whether agency is disputed. Counsel should use MAI 37.05(1) [1991 Revision] when agency is disputed and MAI 37.05(2) [1986 New] when agency is admitted.

When agency is in dispute and the servant is not joined, the initial phrase of the verdict director should read: “In your verdict you must find defendant (name of alleged master) responsible for any percentage of fault you may assess to defendant (name of alleged servant), whether or not plaintiff was partly at fault, if you believe . . . .” The body of the instruction must have a paragraph directing the jury to make a finding as to agency, followed by the usual factual submissions. The verdict director must further tell the jury: “In assessing any such percentage of fault against defendant (alleged master), you must consider the fault of (name of alleged servant) as the fault of (alleged master).” The verdict form contains only the alleged master’s name for...