Section 5 Defenses to Action to Recover Damages for Wrongful Death

• Library: Damages 2012

Section 537.085, RSMo 2000, provides that “the defendant may plead and prove as a defense any defense which the defendant would have had against the deceased in an action based upon the same act . . . which action for damages the deceased would have been entitled to bring had death not ensued.”

It is not proper for a defendant in a wrongful death action to argue a defense beyond that which was pleaded, and a jury instruction directing recovery on a theory different from that pleaded is prejudicially...