Section 20.13 Pleading Negligence Per Se

• Library: Tort Law 2016

B. (§20.13) Pleading Negligence Per Se

If a party desires to avail himself or herself of a statute in presenting the cause of action, the statute does not need to be pled by specific mention or reference to the statute in the petition, counterclaim, or cross-claim. But counsel should plead the facts that bring the case within the purview of the statute in question. See Jones v. Chicago, B. & Q. R. Co., 125 S.W.2d 5 (Mo. 1938); see also Williamson’s Estate v. Williamson, 380 S.W.2d 333 (Mo. 1964). In Penn v. Columbia Asphalt Co., 513 S.W.2d 679 (Mo. App. W.D. 1974), the allegation of the statutory violation was pled substantially in the language of the statute. This was held to be sufficient notice of the plaintiff’s reliance on the statute. But failing to plead the specific statute giving rise to the negligence-per-se cause of action carries substantial risk to the practitioner and is not the recommended course of action.

In Long v. Twehous Contractors, Inc., 904 S.W.2d 285 (Mo. App. W.D. 1995), the court refused to find any implied consent...