Section 12.6 Damage Instructions

• Library: Civil Trial Practice 2015 Supp

C. (§12.6) Damage Instructions

MAI changed the typical damage instruction from one that listed all of the elements of damages that the plaintiff claimed to one that instructs the jury to award “such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff sustained.” MAI 4.01 [2002 Revision]. Explanation of the specific elements of damages sustained by the plaintiff is, in keeping with the approach of MAI, left to counsel to make during closing argument. The Committee’s Comments suggest that the parties and the court discuss what damages are supported by the evidence during the jury instruction conference and obtain rulings at that time to minimize interruptions during closing argument.

The court must give a damage instruction in every case, even when the damages are not in dispute. See MAI 4.09 [1980 Revision]. In a multi-claim case in which packaging is used, there must be a damage instruction in each package. Dierker Assocs., D.C., P.C. v. Gillis, 859 S.W.2d 737 (Mo. App. E.D. 1993). But when the plaintiff submits on multiple alternate theories of liability, but only offers proof of one set of damages, it is error to give more than one damage instruction. Senu-Oke v. Modern Moving Sys., Inc., 978 S.W.2d 426 (Mo. App. E.D. 1998) (injury for breach of contract, replevin, and conversion was the same; error to give damage instruction for each theory and to enter judgment on multiple verdicts); Clayton Brokerage Co. of St. Louis, Inc. v. Pilla, 632 S.W.2d 300 (Mo. App. E.D. 1982).

Most cases will be submitted under MAI 4.01 [2002 Revision], which covers personal injury damages and cases in which there is both personal injury and property damage. In the latter situation, it should be noted that Rule 71.06 requires the jury to state separately the amount of personal injury and property damage even though MAI 4.01 makes no specific reference to either. Future damages—such as lost future wages or earning capacity—are submitted through the bracketed language in MAI 4.01 when there is evidentiary support for such damages. Brenneke v. Dep’t of Mo., Veterans of Foreign Wars, 984 S.W.2d 134 (Mo. App. W.D. 1998) (error to allow future damages to be argued to jury but not submitted); Fincher v. Murphy, 825 S.W.2d 890 (Mo. App. W.D. 1992) (future damage element must be supported by evidence).

MAI 4.01 [2002 Revision] provides for the award of damages sustained “as a direct result of the occurrence mentioned in the evidence.” But the word “occurrence” should be modified when the evidence shows both a compensable event and a noncompensable event, both of which are claimed to have caused damage. The instruction should be changed to use a descriptive phrase that identifies the compensable event. Notes on Use No. 3; Vest v. City Nat’l Bank & Trust Co., 470 S.W.2d 518 (Mo. 1971).

When there are two or more causes of damage to the plaintiff, the entire phrase “as a direct result of the occurrence mentioned in the evidence” should be deleted and the phrase “which (describe the compensable event or conduct) directly caused or directly contributed to cause” substituted. Carlson v. K-Mart Corp., 979 S.W.2d 145 (Mo. banc 1998); MAI 4.01 [2002 Revision], Notes on Use No. 3; MAI 19.01 [1986 Revision], Notes on Use. This situation can arise when there is another tortfeasor, not joined as a party, whose conduct contributed to the injury, or when another event contemporaneous with or subsequent to the defendant’s conduct is another cause of the plaintiff’s injury. It may also arise when the plaintiff has a pre-existing injury that is aggravated by the defendant’s conduct. Higby v. Wein, 996 S.W.2d 95 (Mo. App. E.D. 1999).

The Notes on Use also require a modification to MAI 4.01 [2002 Revision] to add the phrase “on plaintiff’s claim for damages” when there is a counterclaim. This modification...