Section 19.46 Comparative Fault Submissible

• Library: Tort Law 2016

a. (§19.46) Comparative Fault Submissible

Evidence that the operator of a farm tractor who:

· was driving 25 m.p.h. in a 60 m.p.h. zone;

· was aware of at least 1 vehicle behind him;

· slowed to 7 to 5 m.p.h. to make a turn;

· gave inconsistent testimony as to whether he checked his rear-view mirror before turning; and

· admitted that he did not turn to his left to look for traffic before turning,

was sufficient to submit a comparative fault instruction against the tractor operator for failure to keep a lookout in his case for injuries suffered in a collision with a passing vehicle during a left turn. Reasonable jurors could have concluded from this evidence that the plaintiff could have seen the danger by looking over his shoulder before turning, allowing him to avoid the collision. Rouse v. Cuvelier, 363 S.W.3d 406 (Mo. App. W.D. 2012). The opinion contains the full text of the instruction.

The plaintiff’s action in stopping in the center turn lane was a sufficient basis for the submission of a comparative fault instruction because it constituted an attempt by the plaintiff to use the center turn lane to enter the roadway from a side street, and the defendant elicited testimony that this is improper. Thompson v. Marler, 286 S.W.3d 261 (Mo. App. S.D. 2009). The opinion contains the full text of the instruction. But see Robison v. Cameron, 118 S.W.3d 638, 639 n.1 (Mo. App. S.D. 2003) (citing the § 300.215(4), now RSMo Supp. 2013, provision prohibiting driving in a left turn lane except when preparing for or making a left turn from or into the roadway, or when preparing for or making a u-turn otherwise permitted by law).

Failure to keep a careful lookout comparative fault instruction was submissible when the plaintiff was passing a slow-moving trash vehicle with flashers on and the truck turned into the plaintiff’s vehicle while the plaintiff was passing it in an intersection. There was evidence of a need for heightened caution because the plaintiff did not know what the trash vehicle was going to do or whether the trash vehicle was aware of the plaintiff’s vehicle. Evidence of the slow speed of the truck allowed the inference that the plaintiff could have avoided the collision by swerving and sounding the horn. Brown v. Wallace, 52 S.W.3d 21 (Mo. App. W.D. 2001).

In a motor vehicle chain collision case, a comparative fault instruction was warranted when there was evidence that because the plaintiff was following the truck in front of her too closely, she collided with the vehicle in front of her and the defendant, who was following the plaintiff, in turn, had less of an opportunity to stop her vehicle short of a collision with the plaintiff’s vehicle. The reasonable inferences from the evidence were sufficient for the jury to find causation. Smith v. Quallen, 27 S.W.3d 845 (Mo. App. E.D. 2000)...