Section 5 Pleading Comparative Fault

• Library: Damages 2012

Comparative fault is an affirmative defense that must be pleaded and proved. Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003) (Norman I). When the negligence of the plaintiff is not specified in the affirmative defense, but the plaintiff makes no request for a more definite statement, the trial court is authorized to submit the issue to the jury provided that there is evidence to support it. Stotts v. Meyer, 822 S.W.2d 887, 892 (Mo. App. E.D. 1991); see also Richardson v. Collier Bldg. Corp., 793 S.W.2d 366, 375 (Mo. App. W.D. 1990).

Comparative fault can be raised as an alternative defense to a general denial. Michael v. Kowalski, 813 S.W.2d 6 (Mo. App. W.D. 1991). In Michael, the parents of a man killed in an automobile accident brought a wrongful death action. The identity of the driver during the accident was disputed. Id....