As a matter of law, therefore, Three Rivers' objection should have been sustained. Because it was error to submit the highest degree of care standard, the question then is whether Three Rivers was prejudiced by the submission of Instructions Number 8 and Number 14. Prejudice is ordinarily presumed when a jury instruction imposes upon a party a standard of care greater than that required by law.Root v. Mudd, 981 S.W.2d 651, 656 (Mo.App. 1998). The presumption is rarely rebutted.
Indeed, our research revealed no Missouri case on point. Derrick cites Root by and through Root v. Mudd, 981 S.W.2d 651 (Mo.App.W.D. 1998) in arguing, by way of analogy, that because this court found the minor bicyclist therein owed the "highest degree of care" so, too, should a minor operating a lawn mower on a public street. We find Root distinguishable.
Our cases apply this same standard in judging the standard of care for children as compared to other similarly situated children. See, e.g.,Lester v. Sayles, 850 S.W.2d 858, 867 (Mo. banc 1993) (finding the standard of care in crossing street is determined "in relation to the expectations held for other children in the same or similar circumstances"); Root By & Through Root v. Mudd, 981 S.W.2d 651, 654 (Mo. App. W.D. 1998) (finding child bicyclist would be judged by "the care that a ‘very careful child’ of ‘the same age, capacity and experience’ would use under the same or similar circumstances"). The requirement that the jury find how a person would act—"under the same or similar circumstances"—is of key importance in Employee's case, where the statute requires the Commission to determine objectively whether Employee's stress was "extraordinary and unusual."
That the jury was clearly advised as to the correct standards of care for both parties distinguishes this case from those relied upon by the Sasnetts. In Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 158–59 (Mo. banc 2000) and Root v. Mudd, 981 S.W.2d 651, 656 (Mo.App.1999), the circuit court instructed the jury as to the incorrect standard of care for one of the parties, and this incorrect standard was argued to the jury. In Bean v. Superior Bowen Asphalt Co., 340 S.W.3d 275, 279–80 (Mo.App.2011), the two verdict directors, both proper under MAI, were in such conflict that the jury wrote a note to the judge expressing confusion over which one to follow.
That the jury was clearly advised as to the correct standards of care for both parties distinguishes this case from those relied upon by the Sasnetts. In Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 158-59 (Mo. banc 2000) and Root v. Mudd, 981 S.W.2d 651, 656 (Mo. App. 1999), the circuit court instructed the jury as to the incorrect standard of care for one of the parties, and this incorrect standard was argued to the jury. In Bean v. Superior Bowen Asphalt Co., 340 S.W.3d 275, 279-80 (Mo. App. 2011), the two verdict directors, both proper under MAI, were in such conflict that the jury wrote a note to the judge expressing confusion over which one to follow.
Where a jury instruction imposes upon a party a standard of care higher than that required by law, prejudice is presumed. Root v. Mudd, 981 S.W.2d 651, 656 (Mo.App.1998). The presumption is rarely rebutted.
Where a jury instruction imposes upon a party a standard of care higher than that required by law, prejudice is presumed. Root v. Mudd, 981 S.W.2d 651, 656 (Mo. App. 1998). The presumption is rarely rebutted.
Where a jury instruction imposes upon a party a standard of care higher than that required by law, prejudice is presumed. Root v. Mudd, 981 S.W.2d 651, 656 (Mo.App. 1998). The presumption is rarely rebutted.