Section 13.4 General Duty

• Library: Tort Law 2016

A. (§13.4) General Duty

Until Cox v. J.C. Penney Co., 741 S.W.2d 28 (Mo. banc 1987), the basis of a possessor’s liability to an invitee was the possessor’s superior knowledge of an unreasonable risk of harm of which the invitee did not know and in the exercise of ordinary care could not have known. Stafford v. Fred Wolferman, Inc., 307 S.W.2d 468, 473 (Mo. 1957); see also:

· RESTATEMENT (SECOND) OF TORTS §§ 343, 343A (1965)

· Harbourn v. Katz Drug Co., 318 S.W.2d 226 (Mo. 1958)

· Gilpin v. Gerbes Supermarket, Inc., 446 S.W.2d 615 (Mo. banc 1969)

· Skelton v. Gen. Candy Co., 539 S.W.2d 605 (Mo. App. E.D. 1976)

Superior knowledge is no longer a prerequisite for possessor liability to an invitee. The court in Cox concluded that the plaintiff’s knowledge of the defect bears only on the issue of the plaintiff’s comparative fault. Cox, 741 S.W.2d 28.

In Harris v. Niehaus, 857 S.W.2d 222, 227 (Mo. banc 1993), the Supreme Court clarified its holding in Cox by stating:

Cox did not intend to abrogate the open and obviousness of a condition as a consideration for the court in determining a possessor of land’s standard of care. Quite simply, where the danger is open and obvious as a matter of law and the risk of harm exists only if the plaintiff fails to exercise due care, the case is not submissible to the jury—and the dilemma resolved in Cox is never reached.

In Harris, a woman left her three children in an automobile parked on a sloping road. The car rolled into a lake, and the children were drowned. Their parents sued the trustees of the...