Opinion
January 31, 2006
ORDER
1. Additions and revisions of previously approved MAI-CIVIL Instructions, Notes on Use and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions — Civil and reviewed by the Court, are hereby adopted and approved.
2. The Instructions, Notes on Use and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after, July 1, 2006, and may be used prior thereto; any such use shall not be presumed to be error.
3. It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.
Day-to-Day
2.06 [2006 Revision] Explanatory — Inconsistent or Erroneous Verdict
(Approved January 31, 2006; Effective July 1, 2006)
The court cannot accept your verdict[s] as written because (here insert a brief description why the verdict(s) is (are) inconsistent, incomplete, ambiguous, or otherwise erroneous.) [A] [N]ew verdict form[s] is [are] attached for your use, if needed. Do not destroy any of the verdict forms.
Notes on Use (2006 Revision) (Approved January 31, 2006; Effective July 1, 2006)
This instruction may be given if the jury attempts to return an inconsistent, incomplete, ambiguous or otherwise erroneous verdict. The court should identify each of the new verdict forms submitted with this instruction with an appropriate designation such as "Second Set."
22.10 [2006 New] Verdict Directing — Constant Trespassing (Approved January 31, 2006; Effective July 1, 2006)
Your verdict must be for plaintiff if you believe:
First, defendant knew or had information from which defendant, in the exercise of ordinary care1, should have known that trespassers constantly intruded on (here describe the limited area of land on which trespassing occurred), and
Second, defendant [maintained][created]2 (here describe the artificial condition that caused the injury), and
Third, defendant knew that such condition was likely to cause death or serious bodily harm to trespassers, and
Fourth, defendant knew or had information from which defendant, in the exercise of ordinary care1 should have known that trespassers would not discover such condition, and
Fifth, defendant failed to exercise ordinary care1 to warn such trespassers of the condition and the risk involved, and
Sixth, as a direct result of such failure, plaintiff sustained damage.
*[unless you believe plaintiff is not entitled to recover by reason of Instruction Number ____ (here insert number of affirmative defense instruction)]. Notes On Use (2006 New) (Approved January 31, 2006; Effective July 1, 2006)
1. The phrase "ordinary care" must be defined. See the definition at MAI 11.05.
2. Select appropriate term.
Where comparative fault is submissible, modify this instruction in accordance with MAI 37.01.
*Add if affirmative defense is submitted. This bracketed material should not be used to submit comparative fault. See MAI 37.01.
Committee Comment
(Approved January 31, 2006; Effective July 1, 2006)
The law on liability to constant trespassers is set forth in Restatement
(Second) of Torts section 335 (1965), which was expressly adopted in Humphrey v. Glenn, 167 S.W.3d 680, 684 (Mo. banc 2005).
Section 335 provides that:
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or maintains, and
(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers, and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.