Missouri Revised Statutes

Chapter 537
Torts and Actions for Damages

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Action for damages to property to survive regardless of death ofeither party.

537.010. Actions for wrongs done to property or interests therein may be brought against the wrongdoer by the person whose property or interest therein is injured. If the person whose property or interest therein is injured is dead, the action survives and may be brought against the wrongdoer by the person appointed as fiduciary for the estate of the deceased person. If the wrongdoer is dead, the action also survives and may be brought and maintained in the manner set forth in section 537.021. Such actions shall be brought and maintained in the same manner and with like effect in all respects as actions founded upon contracts.

(RSMo 1939 § 98, A.L. 1977 S.B. 147)

Prior revisions: 1929 § 98; 1919 § 97; 1909 § 105

Action for personal injury or death to survive regardless of death ofeither party.

537.020. 1. Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred. Causes of action for death shall not abate by reason of the death of any party to any such cause of action, but shall survive to the personal representative of such party bringing such cause of action and against the person, receiver or corporation liable for such death and his or its legal representatives.

2. The right of action for death or the right of action for personal injury that does not result in the death shall be sufficient to authorize and to require the appointment of a personal representative by the probate division of the circuit court upon the written application therefor by one or more of the beneficiaries of the deceased. The existence of the right of action for death or personal injury that does not result in death shall be sufficient to authorize and to require the appointment of a personal representative for the person liable for such death or injury by the court having probate jurisdiction upon his death upon the written application of any person interested in such right of action for death or injury.

(RSMo 1939 § 3670, A.L. 1947 V. II p. 225, A.L. 1949 p. 633, A.L. 1955 p. 780, A.L. 1977 S.B. 147, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 3280; 1919 § 4231; 1909 § 5438

Effective 1-2-79

Action for damages--personal representative to maintain ordefend--exception--action against liability insurer, procedure.

537.021. 1. The existence of a cause of action for an injury to property, for a personal injury not resulting in death, or for wrongful death, which action survives the death of the wrongdoer or the person injured, or both, shall authorize and require the appointment by a probate division of the circuit court of:

(1) A personal representative of the estate of a person whose property is injured, or a person injured or a person entitled to maintain a wrongful death action upon the death of any such person and such appointment in only those cases involving loss chance of recovery or survival shall be made notwithstanding the time specified in section 473.050 for the exclusive purpose of pursuing a cause of action related to such injury or wrongful death; provided that, in such cases, the court in which any such case is brought shall appoint a plaintiff ad litem at the request of the plaintiff or other interested person delineated in section 537.080 and such person shall be entitled to the proceeds of such action. Such plaintiff ad litem may maintain such action instead of the personal representative of the deceased and may maintain the action as an alternative theory in any action under section 537.080; and

(2) A personal representative of the estate of a wrongdoer upon the death of such wrongdoer; provided that, if a deceased wrongdoer was insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer's liability insurer, then the court in which any such cause of action is brought shall appoint at the request of the plaintiff or other interested party a qualified person to be known as a defendant ad litem. The defendant ad litem when so appointed shall serve and act as the named party defendant in such actions in the capacity of legal representative of the deceased wrongdoer and such appointment and any proceedings had or judgment rendered in such cause after such appointment shall be binding on the insurer of such deceased wrongdoer to the same extent as if a personal representative had acted as the legal representative of such deceased wrongdoer in such cause of action. Should the plaintiff in such cause of action desire to satisfy any portion of a judgment rendered thereon out of the assets of the estate of such deceased wrongdoer, such action shall be maintained against a personal representative appointed by the probate division of the circuit court and the plaintiff shall comply with the provisions of the probate code with respect to claims against decedents' estates. Nothing in this section shall be construed to permit a plaintiff in such cause of action to pursue other assets of a decedent's estate after the expiration of the time provided in section 473.444.

2. Nothing herein shall be construed to require that the deceased wrongdoer leave no assets subject to probate administration before the appointment of a defendant ad litem as herein provided, nor shall the appointment of a defendant ad litem as herein provided prevent the probate division of the circuit court from appointing a personal representative of the estate of the deceased wrongdoer for purposes of administration of the assets thereof.

3. The defendant ad litem may be allowed a reasonable fee by the court appointing him which shall be taxed as court costs. The defendant ad litem shall not be liable for court costs unless specially charged by the court for personal misconduct in the action.

4. Actions properly pending against personal representatives and defendants ad litem prior to September 28, 1981, shall not be affected by the provisions of this section.

(L. 1977 S.B. 147, A.L. 1978 H.B. 1634, A.L. 1981 S.B. 22 & 119 & 23, A.L. 1993 S.B. 88, A.L. 1996 S.B. 494)

Effective 5-23-96

Section 537.010 not to extend to what action.

537.030. Sections 537.010 and 537.020 shall not extend to actions for slander, libel, assault and battery or false imprisonment.

(RSMo 1939 § 99, A. 1949 H.B. 2135)

Prior revisions: 1929 § 99; 1919 § 98; 1909 § 106

Design professionals--peer review process, requirements--expirationdate.

537.033. 1. As used in this section, unless the context clearly indicates otherwise, the following words and terms shall have the meanings indicated:

(1) "Design professional", an architect, landscape architect, professional land surveyor, or professional engineer licensed under the provisions of chapter 327 or any corporation authorized to practice architecture, landscape architecture, land surveying, or engineering under section 327.401 while acting within their scope of practice;

(2) "Lessons learned", internal meetings, classes, publications in any medium, presentations, lectures, or other means of teaching and communicating after substantial completion of the project which are conducted solely and exclusively by and with the employees, partners, and coworkers of the design professional who prepared the project's design for the purpose of learning best practices and reducing errors and omissions in design documents and procedures. Lessons learned shall not include presentations, lectures, teaching, or communication made to or by third parties who are not employees, partners, and coworkers of the design professional whose work is being evaluated and discussed;

(3) "Peer review process", a process through which design professionals evaluate, maintain, or monitor the quality and utilization of architectural, landscape architectural, land surveying, or engineering services, prepare internal lessons learned, or exercise any combination of such responsibilities;

(4) "Substantial completion", the construction of the project covered by the design professional's design documents has reached substantial completion, as that term is defined in section 436.327.

2. A peer review process shall only be performed by a design professional licensed in any jurisdiction in the United States in the same profession as would be required under chapter 327 to prepare the design documents being reviewed, or in a case requiring multiple professions, by a person or persons holding the proper licenses. A peer review process may be performed by one or more design professionals appointed by the partners, shareholders, board of directors, chief executive officer, quality control director, or employed design professionals of a partnership or of a corporation authorized under section 327.401 to practice architecture, landscape architecture, land surveying, or engineering, or by the owner of a sole proprietorship engaged in one or more of such professions. Any individual identified in this subsection and performing a peer review shall be deemed a peer reviewer.

3. Each peer reviewer described in this subsection shall be immune from civil liability for such acts so long as the acts are performed in good faith, without malice, and are reasonably related to the scope of inquiry of the peer review process. The immunity in this subsection is intended to cover only outside peer reviews by a third-party design professional who is not an employee, coworker, or partner of the design professional whose design is being peer reviewed before substantial completion of the project and who has no other role in the project besides performing the peer review.

4. This section does not provide immunity to any in-house peer reviewer when performed by employees, coworkers, or partners of the design professional who prepares the design, nor are any such documents or peer review comments, other than lessons learned, inadmissible into evidence in any judicial or administrative action.

5. Except for documents related to lessons learned, the interviews, memoranda, proceedings, findings, deliberations, reports, and minutes of the peer review process, or the existence of the same, concerning the professional services provided to a client or member of the public are subject to discovery, subpoena, or other means of legal compulsion for their release to any person or entity and shall be admissible into evidence in any judicial or administrative action for failure to provide appropriate architectural, landscape architectural, land surveying, or engineering services, subject to applicable rules of the court or tribunal. Except as otherwise provided in this section, no person who was in attendance at, or participated in, any lessons learned process or proceedings shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding, or to disclose any opinion, recommendation, or evaluation made in a lessons learned process or proceeding; provided, however, that information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during a lessons learned process or proceeding nor is a member, employee, or agent involved in any such process or proceeding, or other person appearing before a peer reviewer, to be prevented from testifying as to matters within his or her personal knowledge and in accordance with the other provisions of this section, but such witness cannot be questioned about a lessons learned process or proceeding or about opinions formed as a result of such process or proceeding. The disclosure of any memoranda, proceedings, reports, or minutes of a lessons learned proceeding to any person or entity, including but not limited to governmental agencies, professional accrediting agencies, or other design professionals, whether proper or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.

6. Nothing in this section shall limit authority otherwise provided by law of the Missouri board for architects, professional engineers, professional land surveyors, and landscape architects to obtain information by subpoena or other authorized process from a peer reviewer or to require disclosure of otherwise confidential information relating to matters and investigations within the jurisdiction of such licensing board.

7. The provisions of this section shall expire on January 1, 2023, unless reauthorized by an act of the general assembly. The provisions of this section shall continue to apply to peer reviews and lessons learned proceedings performed prior to the expiration date of this section.

(L. 2012 H.B. 1280)

Expires 1-01-23

Peer review committees--composition, purpose--immunity from civilliability, who, when--disclosure of records prohibited,exceptions--testimony before, discovery and admissibility,limitations.

537.035. 1. As used in this section, unless the context clearly indicates otherwise, the following words and terms shall have the meanings indicated:

(1) "Health care professional", a physician or surgeon licensed under the provisions of chapter 334, or a dentist licensed under the provisions of chapter 332, or a podiatrist licensed under the provisions of chapter 330, or an optometrist licensed under the provisions of chapter 336, or a pharmacist licensed under the provisions of chapter 338, or a chiropractor licensed under the provisions of chapter 331, or a psychologist licensed under the provisions of chapter 337, or a nurse licensed under the provisions of chapter 335, or a social worker licensed under the provisions of chapter 337, or a professional counselor licensed under the provisions of chapter 337, or a mental health professional as defined in section 632.005, while acting within their scope of practice;

(2) "Peer review committee", a committee of health care professionals with the responsibility to evaluate, maintain, or monitor the quality and utilization of health care services or to exercise any combination of such responsibilities.

2. A peer review committee may be constituted as follows:

(1) Comprised of, and appointed by, a state, county or local society of health care professionals;

(2) Comprised of, and appointed by, the partners, shareholders, or employed health care professionals of a partnership or professional corporation of health care professionals, or employed health care professionals of a university or an entity affiliated with a university operating under chapter 172, 174, 352, or 355;

(3) Appointed by the board of trustees, chief executive officer, or the organized medical staff of a licensed hospital, or other health facility operating under constitutional or statutory authority, including long-term care facilities licensed under chapter 198, or an administrative entity of the department of mental health recognized pursuant to the provisions of subdivision (3) of subsection 1 of section 630.407;

(4) Any other organization formed pursuant to state or federal law authorized to exercise the responsibilities of a peer review committee and acting within the scope of such authorization;

(5) Appointed by the board of directors, chief executive officer or the medical director of the licensed health maintenance organization.

3. Each member of a peer review committee and each person, hospital governing board, health maintenance organization board of directors, and chief executive officer of a licensed hospital or other hospital operating under constitutional or statutory authority, chief executive officer or medical director of a licensed health maintenance organization who testifies before, or provides information to, acts upon the recommendation of, or otherwise participates in the operation of, such a committee shall be immune from civil liability for such acts so long as the acts are performed in good faith, without malice and are reasonably related to the scope of inquiry of the peer review committee.

4. Except as otherwise provided in this section, the interviews, memoranda, proceedings, findings, deliberations, reports, and minutes of peer review committees, or the existence of the same, concerning the health care provided any patient are privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release to any person or entity or be admissible into evidence in any judicial or administrative action for failure to provide appropriate care. Except as otherwise provided in this section, no person who was in attendance at any peer review committee proceeding shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding, or to disclose any opinion, recommendation, or evaluation of the committee or board, or any member thereof; provided, however, that information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during proceedings before a peer review committee nor is a member, employee, or agent of such committee, or other person appearing before it, to be prevented from testifying as to matters within his personal knowledge and in accordance with the other provisions of this section, but such witness cannot be questioned about testimony or other proceedings before any health care review committee or board or about opinions formed as a result of such committee hearings. The disclosure of any interview, memoranda, proceedings, findings, deliberations, reports, or minutes to any person or entity, including but not limited to governmental agencies, professional accrediting agencies, or other health care providers, whether proper or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.

5. The provisions of subsection 4 of this section limiting discovery and admissibility of testimony as well as the proceedings, findings, records, and minutes of peer review committees do not apply in any judicial or administrative action brought by a peer review committee or the legal entity which formed or within which such committee operates to deny, restrict, or revoke the hospital staff privileges or license to practice of a physician or other health care providers; or when a member, employee, or agent of the peer review committee or the legal entity which formed such committee or within which such committee operates is sued for actions taken by such committee which operate to deny, restrict or revoke the hospital staff privileges or license to practice of a physician or other health care provider.

6. Nothing in this section shall limit authority otherwise provided by law of a health care licensing board of the state of Missouri to obtain information by subpoena or other authorized process from peer review committees or to require disclosure of otherwise confidential information relating to matters and investigations within the jurisdiction of such health care licensing boards.

(L. 1973 S.B. 62 § 1, A.L. 1977 H.B. 562, A.L. 1985 H.B. 357, A.L. 1993 S.B. 388, A.L. 1997 H.B. 335, A.L. 2005 H.B. 393)

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

Emergency care, no civil liability, exceptions (Good Samaritan law).

537.037. 1. Any physician or surgeon, registered professional nurse or licensed practical nurse licensed to practice in this state under the provisions of chapter 334 or 335, or licensed to practice under the equivalent laws of any other state and any person licensed as a mobile emergency medical technician under the provisions of chapter 190, may:

(1) In good faith render emergency care or assistance, without compensation, at the scene of an emergency or accident, and shall not be liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care;

(2) In good faith render emergency care or assistance, without compensation, to any minor involved in an accident, or in competitive sports, or other emergency at the scene of an accident, without first obtaining the consent of the parent or guardian of the minor, and shall not be liable for any civil damages other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering the emergency care.

2. Any other person who has been trained to provide first aid in a standard recognized training program may, without compensation, render emergency care or assistance to the level for which he or she has been trained, at the scene of an emergency or accident, and shall not be liable for civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care.

3. Any mental health professional, as defined in section 632.005, or qualified counselor, as defined in section 631.005, or any practicing medical, osteopathic, or chiropractic physician, or certified nurse practitioner, or physicians' assistant may in good faith render suicide prevention interventions at the scene of a threatened suicide and shall not be liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such suicide prevention interventions.

4. Any other person may, without compensation, render suicide prevention interventions at the scene of a threatened suicide and shall not be liable for civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such suicide prevention interventions.

(L. 1979 H.B. 445 § 1, A.L. 1983 1st Ex. Sess. H.B. 8, A.L. 1986 H.B. 860, A.L. 2005 H.B. 462 & 463, A.L. 2008 S.B. 1081)

Parent or guardian liable for damages by minor, when,limitation--minor's liability--work accepted in lieu of payment.

537.045. 1. The parent or guardian, excluding foster parents, of any unemancipated minor, under eighteen years of age, in their care and custody, against whom judgment has been rendered for purposely marking upon, defacing or in any way damaging any property, shall be liable for the payment of that judgment up to an amount not to exceed two thousand dollars, provided that the parent or guardian has been joined as a party defendant in the original action. The judgment provided in this subsection to be paid shall be paid to the owner of the property damaged, but such payment shall not be a bar to any criminal action or any proceeding against the unemancipated minor for such damage for the balance of the judgment not paid by the parent or guardian.

2. The parent or guardian, excluding foster parents, of any unemancipated minor, under eighteen years of age, in their care and custody, against whom judgment has been rendered for purposely causing personal injury to any individual, shall be liable for the payment for that judgment up to an amount not to exceed two thousand dollars, provided that the parent or guardian has been joined as a party defendant in the original action. The judgment provided in this subsection to be paid shall be paid to the person injured, but such payment shall not be a bar to any criminal action or any proceeding against the unemancipated minor for such damage for the balance of the judgment not paid by the parent or guardian.

3. Upon rendering a judgment in any proceeding under this section, the judge may order the parent or guardian, and the minor who damaged the property or caused the personal injury, to work for the owner of the property damaged or the person injured in lieu of payment, if the parent, minor and the owner of the property damaged or the person injured are agreeable.

(L. 1965 p. 661 § 1, A.L. 1979 H.B. 207, A.L. 1990 H.B. 1734)

CROSS REFERENCES:

Damages by minor, restitution, 211.185

Defacing state buildings, liability, 8.150

Parents liable for minors defacing state capitol, 8.150

Childhood sexual abuse, injury or illness defined--action fordamages may be brought, when.

537.046. 1. As used in this section, the following terms mean:

(1) "Childhood sexual abuse", any act committed by the defendant against the plaintiff which act occurred when the plaintiff was under the age of eighteen years and which act would have been a violation of section 566.030, 566.040, 566.050*, 566.060, 566.070, 566.080*, 566.090, 566.100, 566.110*, or 566.120*, or section 568.020;

(2) "Injury" or "illness", either a physical injury or illness or a psychological injury or illness. A psychological injury or illness need not be accompanied by physical injury or illness.

2. Any action to recover damages from injury or illness caused by childhood sexual abuse in an action brought pursuant to this section shall be commenced within ten years of the plaintiff attaining the age of twenty-one or within three years of the date the plaintiff discovers, or reasonably should have discovered, that the injury or illness was caused by childhood sexual abuse, whichever later occurs.

3. This section shall apply to any action commenced on or after August 28, 2004, including any action which would have been barred by the application of the statute of limitation applicable prior to that date.

(L. 1990 H.B. 1370, et al. § 3, A.L. 2004 H.B. 1055 merged with H.B. 1453 merged with S.B. 1211)

*Sections 566.050, 566.080, 566.110, and 566.120 were repealed by S.B. 693 in 1994.

CROSS REFERENCES:

Prosecution for sexual offense involving person seventeen or under to be commenced within twenty years of offense, 556.037

Statute of limitation in action for damages for sexual contact with person within third degree of consanguinity or affinity, 516.371

(1993) Expiration of statutes of limitation for tort actions created vested right in favor of defendants to be free from suit; therefore, to extent that section authorizes causes of action that would have been barred under statutes of limitation in effect prior to effective date of statute, statute contravenes, Art. I, Sec. 13, Mo. Const., constitutional prohibition against retrospective laws. Doe v. Roman Catholic Diocese, 862 S.W.2d 338 (Mo.banc).

(2016) Section creates a cause of action only against the person who allegedly committed the abuse and does not provide a cause of action against non-perpetrators. State ex rel. Heart of America v. McKenzie, 484 S.W.3d 320 (Mo.).

Civil action for damages authorized, sexual and pornographic offensesinvolving a minor--statute of limitations.

537.047. 1. Any person who, while a child or minor as defined by section 573.010, was a victim of a violation of sections 573.023, 573.025, 573.035, or 573.037, and who suffers physical or psychological injury or illness as a result of such violation, shall be entitled to bring a civil action to recover the actual damages sustained as a result of the violation, and shall also be entitled to recover the costs of the civil action and reasonable fees for attorneys and expert witnesses. A psychological injury or illness as described under this section need not be accompanied by physical injury or illness.

2. Any action described under this section shall be commenced within ten years of the plaintiff attaining the age of twenty-one, or within three years of the date the plaintiff discovers that the injury or illness was caused by the violation of an offense enumerated in subsection 1 of this section, whichever later occurs.

3. A cause of action under this section may arise only if the violation that caused the injury occurs on or after August 28, 2007.

(L. 2007 H.B. 583)

Civil action not merged in criminal prosecution.

537.050. In no case shall the right of action of any party injured by the commission of any felony or misdemeanor be deemed or adjudged to be merged in such felony or misdemeanor; but he may recover the amount of damages sustained thereby in an action to be brought before any court or tribunal of competent jurisdiction.

(RSMo 1939 § 3679)

Prior revisions: 1929 § 3289; 1919 § 4240; 1909 § 5447

Sale of alcoholic beverage may be proximate cause of personalinjuries or death--requirements--(dram shop law).

537.053. 1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.

2. Notwithstanding subsection 1 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises when it is proven by clear and convincing evidence that the seller knew or should have known that intoxicating liquor was served to a person under the age of twenty-one years or knowingly served intoxicating liquor to a visibly intoxicated person.

3. For purposes of this section, a person is "visibly intoxicated" when inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction. A person's blood alcohol content does not constitute prima facie evidence to establish that a person is visibly intoxicated within the meaning of this section, but may be admissible as relevant evidence of the person's intoxication.

4. Nothing in this section shall be interpreted to provide a right of recovery to a person who suffers injury or death proximately caused by the person's voluntary intoxication unless the person is under the age of twenty-one years. No person over the age of twenty-one years or their dependents, personal representative, and heirs may assert a claim for damages for personal injury or death against a seller of intoxicating liquor by the drink for consumption on the premises arising out of the person's voluntary intoxication.

5. In an action brought pursuant to subsection 2 of this section alleging the sale of intoxicating liquor by the drink for consumption on the premises to a person under the age of twenty-one years, proof that the seller or the seller's agent or employee demanded and was shown a driver's license or official state or federal personal identification card, appearing to be genuine and showing that the minor was at least twenty-one years of age, shall be relevant in determining the relative fault of the seller or seller's agent or employee in the action.

6. No employer may discharge his or her employee for refusing service to a visibly intoxicated person.

(L. 1985 S.B. 345 § 1, A.L. 2002 H.B. 1532)

(2000) Provisions of Missouri's dram shop law that impose liability only upon conviction of sale of liquor to a person under age or to an obviously intoxicated person are an unconstitutional violation of the state's open courts provision, Missouri Constitution Article I, Section 14, because access to the courts is conditioned upon a prosecutor's decision to bring the case. Kilmer v. Mun, 17 S.W.3d 545 (Mo.banc).

(2002) Kilmer v. Mun decision applies retrospectively. Piskorski v. Larice, 70 S.W.3d 573 (Mo.App.E.D.).

(2006) Dram shop act is constitutional under open courts clause and equal protection clause. Snodgrass v. Martin & Bayley, Inc., 204 S.W.3d 638 (Mo.banc).

Operation of a motorcycle not evidence of comparative negligence.

537.055. In any action to recover damages arising out of the ownership, common maintenance, or operation of a motor vehicle, the fact that one of the parties was operating a motorcycle shall not, in and of itself, be considered evidence of comparative negligence.

(L. 2009 H.B. 481)

CROSS REFERENCE:

Insurance claims, unfair practice to attribute fault solely on operation of motorcycle, penalties, 379.130

Contribution between tort-feasors--release of one or more, effect.

537.060. Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontractual indemnity to any other tort-feasor. The term "noncontractual indemnity" as used in this section refers to indemnity between joint tort-feasors culpably negligent, having no legal relationship to each other and does not include indemnity which comes about by reason of contract, or by reason of vicarious liability.

(RSMo 1939 § 3658, A.L. 1983 H.B. 135 & 194)

Prior revisions: 1929 § 3268; 1919 § 4223; 1909 § 5431

(2001) Claim for noncontractual indemnity includes, in the absence of contractual provision allowing indemnification, seller's claim against manufacturer for indemnification in products liability case. Tiny Totland, Inc. v. Spalding & Evenflo Companies, Inc., 242 F.3d 830 (8th Cir.).

Claimant and tort-feasor may contract to limit recovery to specifiedassets or insurance contract--effect.

537.065. Any person having an unliquidated claim for damages against a tort-feasor, on account of bodily injuries or death, may enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tort-feasor, neither he nor any person, firm or corporation claiming by or through him will levy execution, by garnishment or as otherwise provided by law, except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tort-feasor for such damage and which insurer is not excepted from execution, garnishment or other legal procedure by such contract. Execution or garnishment proceedings in aid thereof shall lie only as to assets of the tort-feasor specifically mentioned in the contract or the insurer or insurers not excluded in such contract. Such contract, when properly acknowledged by the parties thereto, may be recorded in the office of the recorder of deeds in any county where a judgment may be rendered, or in the county of the residence of the tort-feasor, or in both such counties, and if the same is so recorded then such tort-feasor's property, except as to the assets specifically listed in the contract, shall not be subject to any judgment lien as the result of any judgment rendered against the tort-feasor, arising out of the transaction for which the contract is entered into.

(L. 1959 S.B. 259 § 1)

Joint and several liability of defendants in tort actions,allocation of responsibility for judgment--defendants severalliability for punitive damages.

537.067. 1. In all tort actions for damages, if a defendant is found to bear fifty-one percent or more of fault, then such defendant shall be jointly and severally liable for the amount of the judgment rendered against the defendants. If a defendant is found to bear less than fifty-one percent of fault, then the defendant shall only be responsible for the percentage of the judgment for which the defendant is determined to be responsible by the trier of fact; except that, a party is responsible for the fault of another defendant or for payment of the proportionate share of another defendant if any of the following applies:

(1) The other defendant was acting as an employee of the party;

(2) The party's liability for the fault of another person arises out of a duty created by the federal Employers' Liability Act, 45 U.S.C. Section 51.

2. The defendants shall only be severally liable for the percentage of punitive damages for which fault is attributed to such defendant by the trier of fact.

3. In all tort actions, no party may disclose to the trier of fact the impact of this section.

(L. 1987 H.B. 700 § 41, A.L. 2005 H.B. 393)

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

(2001) Joint and several liability applies to Missouri Highway and Transportation Commission; application of statute would not require the public payment of a private debt or the unconstitutional diversion of appropriated highway funds. Smith v. Coffey, 37 S.W.3d 797 (Mo.banc.).

Court may enter remittitur order or increase jury award, when.

537.068. A court may enter a remittitur order if, after reviewing the evidence in support of the jury's verdict, the court finds that the jury's verdict is excessive because the amount of the verdict exceeds fair and reasonable compensation for plaintiff's injuries and damages. A court may increase the size of a jury's award if the court finds that the jury's verdict is inadequate because the amount of the verdict is less than fair and reasonable compensation for plaintiff's injuries and damages.

(L. 1987 H.B. 700 § 42)

Effective 7-1-87

Provisions of certain laws applicable to all causes of action.

537.069. The provisions of sections 260.552, 408.040, 490.715, 509.050, 510.263, 537.067, 537.068, 537.117, 537.675, and 537.760 to 537.765 and 538.300 shall apply to all causes of actions accruing after July 1, 1987.

(L. 1987 H.B. 700 § 45)

Effective 7-1-87

CROSS REFERENCE:

Medical and health care providers, malpractice sections, 538.205 to 538.235; certain sections not applicable, 538.300

Action for wrongful death--who may sue--limitation.

537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;

(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;

(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.

2. Only one action may be brought under this section against any one defendant for the death of any one person.

(RSMo 1939 §§ 3652, 3653, A.L. 1955 p. 778 § 537.070, A.L. 1967 p. 663, A.L. 1979 S.B. 368, A.L. 1991 H.B. 236)

Prior revisions: 1929 §§ 3262, 3263; 1919 §§ 4217, 4218; 1909 §§ 5425, 5426

Defenses to wrongful death action.

537.085. On the trial of such action to recover damages for causing death, 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, conduct, occurrence, transaction, or circumstance which caused the death of the deceased, and which action for damages the deceased would have been entitled to bring had death not ensued.

(L. 1955 p. 778 § 537.090, A.L. 1979 S.B. 368)

Damages to be determined by jury--factors to be considered.

537.090. In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable. If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section 287.250. If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased's parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.

(RSMo 1939 § 3654, A.L. 1945 p. 846, A.L. 1955 p. 778 § 537.080, A.L. 1967 p. 663, A.L. 1973 H.B. 173, A.L. 1979 S.B. 368, A.L. 2005 H.B. 393)

Prior revisions: 1929 § 3264; 1919 § 4219; 1909 § 5427

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

Joinder of parties not required, when, effect on recovery--plaintiffad litem, recovery, distribution.

537.095. 1. Except as provided in subsection 2 of this section, if two or more persons are entitled to sue for and recover damages as herein allowed, then any one or more of them may compromise or settle the claim for damages with approval of any circuit court, or may maintain such suit and recover such damages without joinder therein by any other person, provided that the claimant or petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under section 537.080. Any settlement or recovery by suit shall be for the use and benefit of those who sue or join, or who are entitled to sue or join, and of whom the court has actual written notice.

2. When any settlement is made, or recovery had, by any plaintiff ad litem, the persons entitled to share in the proceeds thereof shall be determined according to the laws of descent, and any settlement or recovery by such plaintiff ad litem shall likewise be distributed according to the laws of descent unless special circumstances indicate that such a distribution would be inequitable, in which case the court shall apportion the settlement or recovery in proportion to the losses suffered by each person or party entitled to share in the proceeds and, provided, that any person entitled to share in the proceeds shall have the right to intervene at any time before any judgment is entered or settlement approved under this section.

3. In any action for damages under section 537.080, the trier of the facts shall state the total damages found, or upon the approval of any settlement for which a petition or application for such approval has been filed, the court shall state the total settlement approved. The court shall then enter a judgment as to such damages, apportioning them among those persons entitled thereto in proportion to the losses suffered by each as determined by the court.

4. The court shall order the claimant:

(1) To collect and receipt for the payment of the judgment;

(2) To deduct and pay the expenses of recovery and collection of the judgment and the attorneys' fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances;

(3) To acknowledge satisfaction in whole or in part for the judgment and costs;

(4) To distribute the net proceeds as ordered by the court; and

(5) To report and account therefor to the court. In its discretion the court may require the claimant to give bond for the collection and distribution.

(L. 1967 p. 663, A.L. 1979 S.B. 368)

Limitation of action--effect of absence of defendant and nonsuit.

537.100. Every action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue; provided, that if any defendant, whether a resident or nonresident of the state at the time any such cause of action accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state in any such action heretofore or hereafter accruing, the time during which such defendant is so absent from the state shall not be deemed or taken as any part of the time limited for the commencement of such action against him; and provided, that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit, or after a verdict for him the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time within one year after such nonsuit suffered or such judgment arrested or reversed; and in determining whether such new action has been begun within the period so limited, the time during which such nonresident or absent defendant is so absent from the state shall not be deemed or taken as any part of such period of limitation.

(RSMo 1939 § 3656, A.L. 1955 p. 778, A.L. 1967 p. 663, A.L. 1979 S.B. 368)

Prior revisions: 1929 § 3266; 1919 § 4221; 1909 § 5429

(2015) Assertion of expiration of statute of limitations period as a defense to wrongful death claim can be barred under common law maxims precluding one from benefitting from his or her own fraud and the application of the doctrine of equitable estoppel. State ex rel. Beisly v. Perigo, 469 S.W.3d 434 (Mo.).

(2015) Section does not provide for delayed accrual or an exception for fraudulent concealment. Boland v. St. Luke's Health System, Inc., 471 S.W.3d 703 (Mo.)

Radio station not liable for defamation, when.

537.105. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, or the agents or employees of such owner, licensee or operator of such a station or network of stations, shall not be liable for any damages for any defamatory statement uttered over the facilities of such station or network by or on behalf of any candidate for public office where such statement is not subject to censorship or control by reason of any federal statute or any ruling or order of the Federal Communications Commission made pursuant thereto.

(L. 1951 p. 804 § 1)

What words are actionable.

537.110. It is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery.

(RSMo 1939 § 3651)

Prior revisions: 1929 § 3261; 1919 § 4216; 1909 § 5424

CROSS REFERENCE:

Pleadings in libel or slander actions, 509.210

Food donation or distribution, limited liability, when.

537.115. 1. As used in this section, the following terms mean:

(1) "Canned food", any food commercially processed and prepared for human consumption;

(2) "Perishable food", any food which may spoil or otherwise become unfit for human consumption because of its nature, type or physical condition. This term includes, but is not limited to, fresh and processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits and vegetables, and foods which have been packaged, refrigerated, or frozen.

2. All other provisions of law notwithstanding, a good faith donor of canned or perishable food, which complies with chapter 196 at the time it was donated and which is fit for human consumption at the time it is donated, to a bona fide charitable or not-for-profit organization for free distribution, shall not be subject to criminal or civil liability arising from an injury or death due to the condition of such food unless such injury or death is a direct result of the negligence, recklessness or intentional misconduct of such donor.

3. All other provisions of law notwithstanding, a bona fide charitable or not-for-profit organization which in good faith receives and distributes food, which complies with chapter 196 at the time it was donated and which is fit for human consumption at the time it is distributed, without charge, shall not be subject to criminal or civil liability arising from an injury or death due to the condition of such food unless such injury or death is a direct result of the negligence, recklessness, or intentional misconduct of such organization.

4. Notwithstanding any other provision of law to the contrary, a good faith donor or a charitable or not-for-profit organization, who in good faith receives or distributes frozen and packaged venison without charge, shall not be subject to criminal or civil liability arising from an injury or death due to the condition of such food, except as provided in this subsection. The venison must:

(1) Come from a whitetail deer harvested in accordance with the rules and regulations of the department of conservation;

(2) Be field dressed and handled in a sanitary manner and the carcass of which remains in sound condition;

(3) Be processed in a licensed facility that is subject to the United States Department of Agriculture's mandated inspections during domesticated animal operations or is approved by the Missouri department of agriculture meat inspection program.

Except that, the provisions of this subsection shall not apply if the injury or death is a direct result of the negligence, recklessness or intentional misconduct of such donor or the deer was harvested during a season that the deer in Missouri were found to have diseases communicable to humans. Venison handled and processed in accordance with the provisions of this section and protected by all reasonable means from foreign or injurious contamination is exempt from the provisions of chapter 196.

5. The provisions of this section shall govern all good faith donations of canned or perishable food which is not readily marketable due to appearance, freshness, grade, surplus or other conditions, but nothing in this section shall restrict the authority of any appropriate agency to regulate or ban the use of such food for human consumption.

(L. 1981 H.B. 113 § 1, A.L. 1993 H.B. 306, A.L. 1996 H.B. 1610, A.L. 2004 H.B. 1192 merged with S.B. 740, et al.)

Officers or members of governing bodies of certain corporations,charities, organizations or clubs immune from personal liability forofficial acts, exceptions.

537.117. Any officer or member of the governing body of an entity which operates under the standards of section 501(c) of the Internal Revenue Code of 1986, who is not compensated for his services on a salary or prorated equivalent basis, shall be immune from personal liability for any civil damages arising from acts performed in his official capacity. The immunity shall extend only to such actions for which the person would not otherwise be liable, but for his affiliation with such an entity. This immunity shall not apply to intentional conduct, wanton or willful conduct, or gross negligence. Nothing herein shall be construed to create or abolish an immunity in favor of the entity itself.

(L. 1987 H.B. 700 § 43)

Effective 7-1-87

Volunteers, limited personal liability, certain organizations andgovernment entities, exceptions.

537.118. 1. As used in this section, the following terms mean:

(1) "Nonprofit organization", an entity which operates under the standards of section 501(c) of the Internal Revenue Code of 1986 as amended;

(2) "Prorated equivalent basis", any other basis for compensation except that used to compensate for expenses actually incurred; and

(3) "Volunteer", an individual performing services for a nonprofit organization or a governmental entity who is not compensated for his services on a salary or prorated equivalent basis. The term shall not include those covered by section 537.117.

2. Any volunteer of a nonprofit organization or governmental entity shall be immune from personal liability for any act or omission resulting in damage or injury to any person intended to receive benefit from such volunteer's service if:

(1) The volunteer acted in good faith and within the scope of his official functions and duties with the organization or entity; and

(2) The damage or injury was not caused by the intentional or malicious conduct or by the negligence of such volunteer.

3. Nothing in this section shall be construed to create or abolish an immunity in favor of a nonprofit organization or a governmental entity.

4. The provisions of this section shall apply to all causes of action accruing after August 28, 1989.

(L. 1989 S.B. 208 § 1)

Physician not liable for restraint of mentally incapacitated persons.

537.120. No regular practicing or licensed physician or surgeon or the owner or operator of any private sanatorium or hospital shall be liable in damages for restraint of any mentally incapacitated person by reason of having in good faith furnished care, treatment or attention to such person, and while such person is under the care of such physician or surgeon or confined in such sanatorium or hospital.

(RSMo 1939 § 508, A.L. 1983 S.B. 44 & 45)

Civil action for damages for passing badchecks, only original holder may bringaction--limitations--notice requirements--payroll checks, actionto be against employer.

537.123. In addition to all other penalties provided by law, any person who makes, utters, draws, or delivers any check, draft, or order for the payment of money upon any bank, savings and loan association, credit union, or other depositary, financial institution, person, firm, or corporation which is not honored because of lack of funds or credit to pay or because of not having an account with the drawee and who fails to pay the amount for which such check, draft, or order was made in cash to the holder within thirty days after notice and a written demand for payment, deposited as certified or registered mail in the United States mail, or by regular mail, supported by an affidavit of service by mailing, notice deemed conclusive three days following the date the affidavit is executed, and addressed to the maker and to the endorser, if any, of the check, draft, or order at each of their addresses as it appears on the check, draft, or order or to the last known address, shall, in addition to the face amount owing upon such check, draft, or order, be liable to the holder for three times the face amount owed or one hundred dollars, whichever is greater, plus reasonable attorney fees incurred in bringing an action pursuant to this section. Only the original holder, whether the holder is a person, bank, savings and loan association, credit union, or other depository, financial institution, firm or corporation, may bring an action pursuant to this section. No original holder shall bring an action pursuant to this section if the original holder has been paid the face amount of the check and costs recovered by the prosecuting attorney or circuit attorney pursuant to subsection 6 of section 570.120. If the issuer of the check has paid the face amount of the check and costs pursuant to subsection 6 of section 570.120, such payment shall be an affirmative defense to any action brought pursuant to this section. The original holder shall elect to bring an action pursuant to this section or section 570.120, but may not bring an action pursuant to both sections. In no event shall the damages allowed pursuant to this section exceed five hundred dollars, exclusive of reasonable attorney fees. In situations involving payroll checks, the damages allowed pursuant to this section shall only be assessed against the employer who issued the payroll check and not against the employee to whom the payroll check was issued. The provisions of sections 408.140 and 408.233 to the contrary notwithstanding, a lender may bring an action pursuant to this section. The provisions of this section will not apply in cases where there exists a bona fide dispute over the quality of goods sold or services rendered.

(L. 1985 S.B. 264 § 2, A.L. 1989 S.B. 310, A.L. 1993 S.B. 180, A.L. 2002 H.B. 1888, A.L. 2005 S.B. 420 & 344, A.L. 2014 S.B. 491)

Transferred 2014; formerly 570.123; Effective 1-01-17

Shoplifting--detention of suspect by merchant--liability presumption.

537.125. 1. As used in this section:

(1) "Mercantile establishment" means any mercantile place of business in, at or from which goods, wares and merchandise are sold, offered for sale or delivered from and sold at retail or wholesale;

(2) "Merchandise" means all goods, wares and merchandise offered for sale or displayed by a merchant;

(3) "Merchant" means any corporation, partnership, association or person who is engaged in the business of selling goods, wares and merchandise in a mercantile establishment;

(4) "Wrongful taking" includes stealing of merchandise or money and any other wrongful appropriation of merchandise or money.

2. Any merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, may detain such person in a reasonable manner and for a reasonable length of time for the purpose of investigating whether there has been a wrongful taking of such merchandise or money. Any such reasonable detention shall not constitute an unlawful arrest or detention, nor shall it render the merchant, his agent or employee, criminally or civilly liable to the person so detained.

3. Any person willfully concealing unpurchased merchandise of any mercantile establishment, either on the premises or outside the premises of such establishment, shall be presumed to have so concealed such merchandise with the intention of committing a wrongful taking of such merchandise within the meaning of subsection 1, and the finding of such unpurchased merchandise concealed upon the person or among the belongings of such person shall be evidence of reasonable grounds and probable cause for the detention in a reasonable manner and for a reasonable length of time, of such person by a merchant, his agent or employee, in order that recovery of such merchandise may be effected, and any such reasonable detention shall not be deemed to be unlawful, nor render such merchant, his agent or employee criminally or civilly liable.

4. Any merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed a wrongful taking of property, as defined in this section, and who has detained such person and investigated such wrongful taking, may contact law enforcement officers and instigate criminal proceedings against such person. Any such contact of law enforcement authorities or instigation of a judicial proceeding shall not constitute malicious prosecution, nor shall it render the merchant, his agent or employee criminally or civilly liable to the person so detained or against whom proceedings are instigated.

(L. 1961 p. 571 §§ 1, 2, 3, A.L. 1985 H.B. 225)

Stealing, civil liability--parent orguardian civilly liable for minor's stealing--conversion ofshopping carts, penalty.

537.127. 1. As used in this section, the following terms mean:

(1) "Actual damages", the full retail value of any merchandise which is taken or which has its price altered in a manner described in subsection 2 of this section, plus any proven incidental costs to the owner of the merchandise not to exceed one hundred dollars;

(2) "Mercantile establishment", any place where merchandise is displayed, held or offered for sale either at retail or at wholesale;

(3) "Merchandise", all things movable and capable of manual delivery and offered for sale either at retail or wholesale;

(4) "Unemancipated minor", an individual under the age of eighteen years whose parents or guardian have not surrendered the right to the care, custody and earnings of such individual, and are under a duty to support or maintain such individual.

2. An adult or a minor who takes possession of any merchandise from any mercantile establishment without the consent of the owner, without paying the purchase price and with the intention of converting such merchandise to his own use, or the use of another, or who purchases merchandise after altering the price indicia of such merchandise, shall be civilly liable to the owner for actual damages plus a penalty payable to the owner of not less than one hundred dollars nor more than two hundred fifty dollars and all court costs and reasonable attorney fees.

3. The parents or guardian having physical custody of an unemancipated minor, who takes possession of any merchandise from any mercantile establishment without the consent of the owner, without paying the purchase price and with the intention of converting such merchandise to his own use, or the use of another, or who purchases merchandise after altering the price indicia of such merchandise, shall be civilly liable to the owner for actual damages, provided that a parent or guardian shall not be liable if they have not had physical custody for a period in excess of one year.

4. Notwithstanding the provisions of subsections 2 and 3 of this section, any person who, without the consent of the owner, takes possession of a shopping cart from any mercantile establishment with the intent to convert such shopping cart to his own use or the use of another shall be civilly liable to the owner for actual damages plus a penalty payable to the owner of one hundred dollars and all court costs and reasonable attorney fees.

5. A conviction under section 570.030 shall not be a condition precedent to maintaining a civil action pursuant to the provisions of this section.

6. No owner or agent or employee of the owner may attempt to gain an advantage in a civil action by threatening to initiate a criminal prosecution pertaining to the same incident.

(L. 1990 H.B. 948, A.L. 2014 S.B. 491)

Transferred 2014; formerly 570.087; Effective 1-01-17

Liability for damages caused by riotous assemblage.

537.130. Any person or persons forming a part of an unlawful or riotous assemblage shall be liable for any damage to person or property caused by the acts of such assemblage, or of any person or persons unlawfully connected therewith.

(RSMo 1939 § 3661)

Prior revisions: 1929 § 3271; 1919 § 8672; 1909 § 9549

Political subdivisions to defend tort actions against firemeninvolving use of motor vehicles--extent of liability.

537.165. Every county, city, town, village, fire district or other political subdivision of the state having a full time salaried fire department shall defend, in the name and on behalf of the members of its fire department in any action brought against a member involving claims for death or injury to persons or property arising out of their operation of motor vehicles of the fire department in the performance of their duties. Such defense shall be conducted by the regular legal staff of the county, city, town, village, fire district or other political subdivision involved. No judgment, or liability for court costs, obtained against any such member in any such action shall be a liability of the county, city, town, village, fire district or other political subdivision defending such action.

(L. 1957 p. 756 § 1)

Waiver of rights to damages by blind employee.

537.170. It shall hereafter be lawful for any blind person over the age of eighteen years to agree to and with his or her employer to waive his or her right to damages or compensation for any personal injury arising out of or in the course of his or her employment for which injury such blindness was the direct or contributory cause and any such agreement shall be valid and binding upon the parties thereto.

(RSMo 1939 § 3669)

Prior revisions: 1929 § 3279; 1919 § 4230

Negligence of fellow servant no defense in action by employee againstrailroad or mine.

537.180. Every railroad corporation owning or operating a railroad in this state and every person, company or corporation operating a mine or mines in this state producing lead, zinc, coal or other valuable minerals shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad or while engaged in operating such mine or mines by reason of the negligence of any other agent or servant thereof; provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.

(RSMo 1939 §§ 3665, 3672, A. 1949 H.B. 2135)

Prior revisions: 1929 §§ 3275, 3282; 1919 §§ 4226, 4233; 1909 §§ 5434, 5440

CROSS REFERENCES:

Contributory negligence of employee no defense in action for injuries against railroad, when, RSMo 389.790 to 389.870

Damages for injuries to employees resulting from failure of railroad to maintain switch lights, RSMo 389.710 to 389.730

Fellow servant defined.

537.190. All persons who are engaged in the common service of such railroad corporation, or of any person, company or corporation operating a mine or mines, and who while so engaged, are working together at the same time and place, to a common purpose of same grade, neither of such persons being entrusted by such railroad corporation, person, company, or corporation with any superintendence or control over their fellow employees, are fellow servants with each other; except that nothing herein contained shall be so construed as to make any agent or servant of any railroad corporation in the service of such railroad corporation a fellow servant with any other agent or servant of such railroad corporation engaged in any other department or service of such corporation.

(RSMo 1939 §§ 3667, 3674, A. 1949 H.B. 2135)

Prior revisions: 1929 §§ 3277, 3284; 1919 §§ 4228, 4235; 1909 §§ 5436, 5442

Vice-principals defined.

537.200. All persons engaged in the service of any railroad corporation doing business in this state or of any person, company or corporation operating a mine or mines in this state, who are entrusted by such railroad corporation, person, company or corporation, with the authority of superintendence, control or command of other persons in the employ or service of such railroad corporation, person, company or corporation, or with authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are "vice-principals" of such corporation, and are not fellow servants with such employees.

(RSMo 1939 §§ 3666, 3673, A. 1949 H.B. 2135)

Prior revisions: 1929 §§ 3276, 3283; 1919 §§ 4227, 4234; 1909 §§ 5435, 5441

Contracts limiting liability invalid.

537.210. No contracts made between any railroad corporation, or between any person, company or corporation operating a mine or mines and their agents or servants, based upon the contingency of the injury or death to any such agent or servant, limiting the liability of the employer for any damages under the provisions of this and sections 537.180 to 537.200 shall be valid or binding, but all such contracts or agreements shall be null and void.

(RSMo 1939 §§ 3668, 3675, A. 1949 H.B. 2135)

Prior revisions: 1929 §§ 3278, 3285; 1919 §§ 4229, 4236; 1909 §§ 5437, 5443

Construction and application of sections 537.180 to 537.210.

537.220. Nothing in sections 537.180 to 537.210 shall be so construed as applying to or including the operation, construction or repairing of concentrating mills, flumes or tramways wholly above ground.

(RSMo 1939 § 3676)

Prior revisions: 1929 § 3286; 1919 § 4237; 1909 § 5444

Action against mining operator for wrongful death ofemployee--amount--limitation.

537.230. Whenever any cause of action shall accrue to any agent or servant of any person, company or corporation operating a mine or mines in this state under sections 537.180 to 537.210, and death shall ensue to such agent or servant by reason of the negligence provided for in said sections, the cause of action shall survive in favor of the widow and minor children of the deceased; provided, that action therefor shall be brought by the widow within six months after such death, and if she shall fail to bring such action then within twelve months after such death by such minor children; and provided further, that recovery in case of such death shall not exceed the sum of ten thousand dollars.

(RSMo 1939 § 3677, A. 1949 H.B. 2135)

Prior revisions: 1929 § 3287; 1919 § 4238; 1909 § 5445

Railroads and railroad corporation or companies--terms construed.

537.240. Whenever the words "railroad companies" or "railroad corporation" shall be found in sections 537.040 to 537.110, 537.130 to 537.260, it shall be taken and construed to include all companies, corporations, person or persons operating any railroad in this state, and wherever the word "railroad" occurs in any of said sections it shall be taken and construed to include all railroads operated in this state by whatever motive or power propelled, and shall include all railroads or railways, commonly known as street railways, and all railroads operated by terminal companies or associations, known as "terminal railroads" or "railways", as well as all railways or railroads operated anywhere in the state, commonly known as electric railroads, whether they be wholly or in part in the city or country districts; also all railroads within the country or city operated by what is commonly known as cable or motor power, or by horsepower.

(RSMo 1939 § 3671)

Prior revisions: 1929 § 3281; 1919 § 4232; 1909 § 5439

Liability of common carrier for loss or damage to propertytransported--who may be joined as defendants.

537.250. Whenever any property is received by a common carrier to be transferred from one place to another, within or without the state, or when a railroad or other transportation company issues receipts or bills of lading in this state, the common carrier, railroad or transportation company issuing such bill of lading shall be liable for any loss, damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained; provided, that in any suit to recover for any loss, damage or injury to property transported by a common carrier and one or more connecting carriers, the plaintiff may join as defendants the original carrier and all connecting carriers, and shall be entitled to recover in such action from the common carrier, railroad or transportation company, through whose negligence any loss, damage or injury to such property was sustained, the amount of such loss, damage or injury, with all costs of suit, and may prosecute such action in any county in this state in which, as is provided by law, a suit may be maintained against either of such common carriers.

(RSMo 1939 § 3678)

Prior revisions: 1929 § 3288; 1919 § 4239; 1909 § 5446

CROSS REFERENCES:

Common carriers, liable for damage to property in transit, 387.180

Failure of railroad to receive and deliver bulk grain, 389.540

Railroad liable for killing stock--irrespective of negligence unlessroad is fenced.

537.260. When any animal or animals shall be killed or injured by the cars, locomotive or other carriages used on any railroad in this state, the owner of such animal or animals may recover the value thereof, in an action against the company or corporation running such railroad, without any proof of negligence, unskillfulness or misconduct, on the part of the officers, servants or agents of such company; but this section shall not apply to any accident occurring on any portion of such road that may be enclosed by a lawful fence, or in the crossing of any public highway.

(RSMo 1939 § 3655)

Prior revisions: 1929 § 3265; 1919 § 4220; 1909 § 5428

Insufficient fence on railroad--stock killed--damages.

537.270. Whenever any livestock shall go in upon any railroad or its right-of-way, in this state, and the said railroad is not at such place or places enclosed by a good fence, on both sides of said railroad, such as is by law required, or where said railroad has failed to construct and maintain a good and sufficient cattle guard, or opening gate, such as is by law required, and such stock by being frightened or run by any passing locomotive, motor car, or other vehicle, or train on said railroad, shall be injured or killed by or because of having run against the fence on either side, or into any culvert, bridge, slough or mire, or other object along the line of said road, the railroad company shall pay the owner of any such stock so injured or killed the amount of the damages sustained.

(RSMo 1939 § 5219)

Prior revisions: 1929 § 4762; 1919 § 9949; 1909 § 3146

CROSS REFERENCE:

Railroad liable for double damages for killing stock until fences are built, 389.650

Injury to stock by railroad--agreed damages--payment, when.

537.280. Whenever any livestock shall be injured or killed by any railroad, so as to render the railroad liable under section 537.270, or otherwise, and the owner of said livestock so injured or killed, or his authorized agent, and the agent or adjuster of the railroad, shall agree upon the amount of damage or damages sustained by the owner, the railroad shall, within forty days after said agreement, pay to the owner thereof, or his authorized agent, the amount of damage or damages so agreed upon.

(RSMo 1939 § 5220)

Prior revisions: 1929 § 4763; 1919 § 9951; 1909 § 3148

Failure to pay agreed damages--double damages.

537.290. If any railroad neglect, fail or refuse to pay the owner or his authorized agent the damage or damages agreed upon, as provided in section 537.280, then the railroad shall be liable to the owner in double the amount of damage or damages agreed upon, to be recovered in any court of competent jurisdiction.

(RSMo 1939 § 5221)

Prior revisions: 1929 § 4764; 1919 § 9952; 1909 § 3149

Firearm ranges--definitions--not to be deemed a nuisance,when--immunity from civil and criminal liability, when.

537.294. 1. As used in this section, the following terms shall mean:

(1) "Firearm range", any rifle, pistol, silhouette, skeet, trap, black powder or other similar range in this state used for discharging firearms in a sporting event or for practice or instruction in the use of a firearm, or for the testing of a firearm;

(2) "Hunting preserve", any hunting preserve or licensed shooting area operating under a permit granted by the Missouri department of conservation.

2. All owners and authorized users of firearm ranges shall be immune from any criminal and civil liability arising out of or as a consequence of noise or sound emission resulting from the use of any such firearm range. Owners and users of such firearm ranges shall not be subject to any civil action in tort or subject to any action for public or private nuisance or trespass and no court in this state shall enjoin the use or operation of such firearm ranges on the basis of noise or sound emission resulting from the use of any such firearm range. Any actions by a court in this state to enjoin the use or operation of such firearm ranges and any damages awarded or imposed by a court, or assessed by a jury, in this state against any owner or user of such firearm ranges for nuisance or trespass are null and void.

3. All owners and authorized users of existing hunting preserves or areas that are designated as hunting preserves after August 28, 2008, shall be immune from any criminal and civil liability arising out of or as a consequence of noise or sound emission resulting from the normal use of any such hunting preserve. Owners or authorized users of such hunting preserves shall not be subject to any action for public or private nuisance or trespass, and no court in this state shall enjoin the use or operation of such hunting preserves on the basis of noise or sound emission resulting from normal use of any such hunting preserve.

4. Notwithstanding any other provision of law to the contrary, nothing in this section shall be construed to limit civil liability for compensatory damage arising from physical injury to another human, physical injury to tangible personal property, or physical injury to fixtures or structures placed on real property.

(L. 1988 S.B. 434 & 435 § 5, A.L. 2008 H.B. 2034)

Agricultural operation not to be deemed a nuisance,when--exceptions--costs.

537.295. 1. No agricultural operation or any of its appurtenances shall be deemed to be a nuisance, private or public, by any changed conditions in the locality thereof after the facility has been in operation for more than one year, when the facility was not a nuisance at the time the operation began. An agricultural operation protected pursuant to the provisions of this section may reasonably expand its operation in terms of acres or animal units without losing its protected status so long as all county, state, and federal environmental codes, laws, or regulations are met by the agricultural operation. Reasonable expansion shall not be deemed a public or private nuisance, provided the expansion does not create a substantially adverse effect upon the environment or creates a hazard to public health and safety, or creates a measurably significant difference in environmental pressures upon existing and surrounding neighbors because of increased pollution. Reasonable expansion shall not include complete relocation of a farming operation by the owner within or without the present boundaries of the farming operation; however, reasonable expansion of like kind that presently exists, may occur. If a poultry or livestock operation is to maintain its protected status following a reasonable expansion, the operation must ensure that its waste handling capabilities and facilities meet or exceed minimum recommendations of the University of Missouri extension service for storage, processing, or removal of animal waste. The protected status of an agricultural operation, once acquired, shall be assignable, alienable, and inheritable. The protected status of an agricultural operation, once acquired, shall not be waived by the temporary cessation of farming or by diminishing the size of the operation. The provisions of this section shall not apply whenever a nuisance results from the negligent or improper operation of any such agricultural operation or its appurtenances.

2. As used in this section the term "agricultural operation and its appurtenances" includes, but is not limited to, any facility used in the production or processing for commercial purposes of crops, livestock, swine, poultry, livestock products, swine products or poultry products.

3. The provisions of this section shall not affect or defeat the right of any person, firm or corporation to recover damages for any injuries sustained by it as a result of the pollution or other change in the quantity or quality of water used by that person, firm or corporation for private or commercial purposes, or as a result of any overflow of land owned by or in the possession of any such person, firm or corporation.

4. The provisions of this section shall not apply to any nuisance resulting from an agricultural operation located within the limits of any city, town or village on August 13, 1982.

5. In any nuisance action brought in which an agricultural operation is alleged to be a nuisance, and which is found to be frivolous by the court, the defendant shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred in his behalf in connection with the defense of such action, together with a reasonable amount for attorneys fees.

(L. 1982 S.B. 537 § 1, A.L. 1990 S.B. 686)

Private nuisance--definitions--exclusive compensatory damages foragricultural nuisances, subsequent actions, effectof--standing--action in excess of one million dollars, court orjury shall visit property--copy of final judgment to be filed.

537.296. 1. As used in this section, the following terms mean:

(1) "Claimant", a person who asserts a claim of private nuisance;

(2) "Fair market value", the price that a buyer who is willing but not compelled to buy would pay and a seller who is willing but not compelled to sell would accept for property;

(3) "Fair rental value", the price a lessee who is willing but not compelled to lease would pay and a lessor who is willing but not compelled to lease would accept;

(4) "Ownership interest", holding legal or equitable title to property in fee or, in a life, or in a leasehold interest;

(5) "Possessory interest", lawfully possessing property but does not include mere occupancy;

(6) "Property", real property.

2. The exclusive compensatory damages that may be awarded to a claimant for a private nuisance where the alleged nuisance emanates from property primarily used for crop or animal production purposes shall be as follows:

(1) If the nuisance is a permanent nuisance, compensatory damages shall be measured by the reduction in the fair market value of the claimant's property caused by the nuisance, but not to exceed the fair market value of the property;

(2) If the nuisance is a temporary nuisance, compensatory damages shall be measured by the diminution in the fair rental value of the claimant's property caused by the nuisance;

(3) If the nuisance is shown by objective and documented medical evidence to have caused a medical condition to claimant, compensatory damages arising from that medical condition may be awarded in addition to the exclusive damages permitted under subdivisions (1) and (2) of this subsection.

3. Concerning a private nuisance where the alleged nuisance emanates from property primarily used for crop or animal production purposes, if any claimant or claimant's successor with ownership interest brings any subsequent claim against the same defendant or defendant's successors for temporary nuisance related to a similar activity or use of the defendant's property, and such activity or use of property is deemed a nuisance, the activity or use of property at issue shall be considered a permanent nuisance and such claimant and claimant's successors shall be limited to and bound by the remedies available for a permanent nuisance.

4. If a defendant in a private nuisance case where the nuisance is alleged to emanate from property used for crop or animal production purposes demonstrates a good faith effort to abate a condition that is determined to constitute a nuisance, the nuisance shall be deemed to be not capable of abatement. Substantial compliance with a court order regarding such property shall constitute such a good faith effort as a matter of law.

5. Concerning a private nuisance where the alleged nuisance emanates from property primarily used for crop or animal production purposes, no person shall have standing to bring an action for private nuisance unless the person has an ownership interest in the property alleged to be affected by the nuisance.

6. Nothing in this section shall:

(1) Prohibit a person from recovering damages for annoyance, discomfort, sickness, or emotional distress; provided that such damages are awarded on the basis of other causes of action independent of a claim of nuisance; or

(2) Prohibit the recovery of any damages, direct, consequential, or otherwise, resulting from or relating to crop destruction, crop damage, contamination of the seed supply, or a diminution of crop value resulting from contamination of the seed or grain supply, herbicide drift, or other diminution of crop value.

7. If any party requests the court or jury visit the property alleged to be affected by the nuisance in an action for private nuisance where the amount in controversy exceeds one million dollars, the court or jury shall visit the property.

8. A copy of the final judgment in any action alleging a private nuisance shall be filed with the recorder of deeds in the county in which the final judgment was issued and shall operate as notice to any purchaser of the claimant's property that the property was related to a previous claim for nuisance.

(L. 2009 H.B. 481, A.L. 2010 H.B. 1692, et al., A.L. 2011 S.B. 187)

(2015) Section does not authorize a private taking nor a taking for public use without just compensation, does not deny equal protection, does not involve a suspect classification or fundamental rights, is rationally related to a legitimate state purpose, does not violate the separation of powers, does not violate the open courts provision, and is not an unconstitutional special law. Labrayere v. Bohr Farms, LLC, 458 S.W.3d 319 (Mo.banc).

Transfer of anhydrous ammonia, tamperer assumes risk--owners immunefrom liability and suit, when.

537.297. 1. The following words as used in this section shall have the following meanings:

(1) "Owner", all of the following persons:

(a) Any person who lawfully owns anhydrous ammonia;

(b) Any person who lawfully owns a container, equipment or storage facility containing anhydrous ammonia;

(c) Any person responsible for the installation or operation of such containers, equipment or storage facilities;

(d) Any person lawfully selling anhydrous ammonia;

(e) Any person lawfully purchasing anhydrous ammonia for agricultural purposes;

(f) Any person who operates or uses anhydrous ammonia containers, equipment or storage facilities when lawfully applying anhydrous ammonia for agricultural purposes;

(2) "Tamperer", a person who commits or assists in the commission of tampering;

(3) "Tampering", transferring or attempting to transfer anhydrous ammonia from its present container, equipment or storage facility to another container, equipment or storage facility, without prior authorization from the owners.

2. A tamperer assumes the risk of any personal injury, death and other economic and noneconomic loss arising from his or her participation in the act of tampering. A tamperer or any person related to a tamperer shall not commence a direct or derivative action against any owner as it relates to the act of tampering. Owners are immune from suit by a tamperer or any person related to a tamperer and shall not be held liable for any negligent act or omission which may cause personal injury, death or other economic or noneconomic loss to a tamperer as it relates to the act of tampering.

3. The immunity from liability and suit authorized by this section is expressly waived for owners whose acts or omissions constitute willful or wanton negligence.

(L. 2001 H.B. 471 merged with S.B. 89 & 37)

Penalty for driving away of others' stock by drovers.

537.300. Whenever any drover, or other person or persons engaged in driving horses, mules, cattle, hogs or sheep through any part of the state of Missouri, shall drive off or shall knowingly and willingly suffer or permit to be driven off from the premises of any citizen of said state, or from the range in which stock of any citizen usually run, to any distance exceeding three miles from such premises or range, any horses, mules, neat cattle, hogs or sheep belonging to such citizen, it shall be lawful for the owner of any such stock so driven off to follow and reclaim the same wherever it may be found; and for the taking and driving away, or suffering or permitting to be driven away, of such stock, the said owner shall be entitled to recover from any said drover, or other person or persons guilty thereof, for each head of horses, mules, neat cattle, hogs or sheep so driven away, twice the value thereof, to be recovered in civil action in the circuit court of the proper county before either a circuit or associate circuit judge and such case may be heard and determined by an associate circuit judge under chapter 517 procedures without special assignment or transfer regardless of the amount of the claim; provided, however, that if the drover shall not pass any habitation where there is a sufficient enclosure for the safekeeping of such animal or animals within said three miles, and shall separate said cattle or other stock from the drove at the next habitation, in such case said action shall not accrue to the owner of said property.

(RSMo 1939 § 14495, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 12821; 1919 § 4311; 1909 § 812

Effective 1-2-79

Proceedings under section 537.300.

537.310. In any action commenced under section 537.300, a summons may issue against the defendants upon the plaintiff stating, on oath, that he believes some one or more of his cattle or other stock has been driven off by a drover, and that he believes the same to be of a certain value, to be endorsed on the writ; and the proceedings thereon shall be the same as in other actions commenced by summons; provided, however, that no exception shall be taken to the form of the oath aforesaid, and that upon such affidavit, and the execution of a bond by plaintiff, as now required under proceedings by attachment for the amount stated in said affidavit, he shall also be entitled to an attachment against the horses, cattle, mules, hogs, sheep or other animals which defendant or defendants are then so driving, and also against their goods and chattels, and may proceed, under said attachment, to recover all damages given to plaintiff under section 537.300.

(RSMo 1939 § 14496)

Prior revisions: 1929 § 12822; 1919 § 4312; 1909 § 813

Judgment--execution.

537.320. Whenever judgment shall be rendered against any person or persons, under the provisions of sections 537.300 to 537.320, by any associate circuit judge or circuit judge, an execution shall issue thereon against the goods and chattels of any such defendant or defendants.

(RSMo 1939 § 14497, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 12823; 1919 § 4313; 1909 § 814

Effective 1-2-79

Definitions--liability for equine activities, limitations,exceptions--signs required, contents.

537.325. 1. As used in this section, unless the context otherwise requires, the following words and phrases shall mean:

(1) "Engages in an equine activity", riding, training, assisting in medical treatment of, driving or being a passenger upon an equine, whether mounted or unmounted, or any person assisting a participant or any person involved in show management. The term "engages in an equine activity" does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area;

(2) "Equine", a horse, pony, mule, donkey or hinny;

(3) "Equine activity":

(a) Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games and hunting;

(b) Equine training or teaching activities or both;

(c) Boarding equines;

(d) Riding, inspecting or evaluating an equine belonging to another, whether or not the owner has received or currently receives monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine;

(e) Rides, trips, hunts or other equine activities however informal or impromptu that are sponsored by an equine activity sponsor; and

(f) Placing or replacing horseshoes on an equine;

(4) "Equine activity sponsor", an individual, group, club, partnership or corporation, whether or not operating for profit or nonprofit, legal entity, or any employee thereof, which sponsors, organizes or provides the facilities for, an equine activity, including but not limited to pony clubs, 4-H clubs, hunt clubs, riding clubs, school- and college-sponsored classes, programs and activities, therapeutic riding programs and operators, instructors and promoters of equine facilities, including but not limited to stables, clubhouses, pony ride strings, fairs and arenas at which the activity is held;

(5) "Equine professional", a person engaged for compensation, or an employee of such a person engaged:

(a) In instructing a participant or renting to a participant an equine for the purpose of riding, driving or being a passenger upon the equine; or

(b) In renting equipment or tack to a participant;

(6) "Inherent risks of equine or livestock activities", those dangers or conditions which are an integral part of equine or livestock activities, including but not limited to:

(a) The propensity of any equine or livestock to behave in ways that may result in injury, harm or death to persons on or around it;

(b) The unpredictability of any equine's or livestock's reaction to such things as sounds, sudden movement and unfamiliar objects, persons or other animals;

(c) Certain hazards such as surface and subsurface conditions;

(d) Collisions with other equines, livestock, or objects;

(e) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his ability;

(7) "Livestock", the same as used in section 277.020;

(8) "Livestock activity":

(a) Grazing, herding, feeding, branding, milking, or other activity that involves the care or maintenance of livestock;

(b) A livestock show, fair, competition, or auction;

(c) A livestock training or teaching activity;

(d) Boarding livestock; and

(e) Inspecting or evaluating livestock;

(9) "Livestock activity sponsor", an individual, group, club, partnership, or corporation, whether or not operating for profit or nonprofit, legal entity, or any employee thereof, which sponsors, organizes, or provides the facilities for a livestock activity;

(10) "Livestock facility", a property or facility at which a livestock activity is held;

(11) "Livestock owner", a person who owns livestock that is involved in livestock activity;

(12) "Participant", any person, whether amateur or professional, who engages in an equine activity or a livestock activity, whether or not a fee is paid to participate in the equine activity or livestock activity.

2. Except as provided in subsection 4 of this section, an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, any employee thereof, or any other person or corporation shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine or livestock activities and, except as provided in subsection 4 of this section, no participant or a participant's representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, any employee thereof, or any other person from injury, loss, damage or death of the participant resulting from any of the inherent risks of equine or livestock activities.

3. This section shall not apply to the horse racing industry as regulated in sections 313.050 to 313.720. This section shall not apply to any employer-employee relationship governed by the provisions of, and for which liability is established pursuant to, chapter 287.

4. The provisions of subsection 2 of this section shall not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, any employee thereof, or any other person if the equine activity sponsor, equine professional, livestock activity sponsor, livestock owner, livestock facility, livestock auction market, any employee thereof, or person:

(1) Provided the equipment or tack and knew or should have known that the equipment or tack was faulty and such equipment or tack was faulty to the extent that the equipment or tack caused the injury; or

(2) Provided the equine or livestock and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity or livestock activity and determine the ability of the participant to safely manage the particular equine or livestock based on the participant's age, obvious physical condition or the participant's representations of his or her ability;

(3) Owns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, livestock activity sponsor, livestock owner, livestock facility, livestock auction market, any employee thereof, or person and for which warning signs have not been conspicuously posted;

(4) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant and that act or omission caused the injury;

(5) Intentionally injures the participant;

(6) Fails to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

5. The provisions of subsection 2 of this section shall not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof under liability provisions as set forth in any other section of law.

6. Every equine activity sponsor and livestock activity sponsor shall post and maintain signs which contain the warning notice specified in this subsection. Such signs shall be placed in a clearly visible location on or near stables, corrals or arenas where the equine activity sponsor or livestock activity sponsor conducts equine or livestock activities if such stables, corrals or arenas are owned, managed or controlled by the equine activity sponsor or livestock activity sponsor. The warning notice specified in this subsection shall appear on the sign in black letters on a white background with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional, an equine activity sponsor, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof for the providing of professional services, instruction or the rental of equipment, tack, or an equine to a participant, whether or not the contract involves equine or livestock activities on or off the location or site of the equine professional's, equine activity sponsor's, or livestock activity sponsor's business, shall contain in clearly readable print the warning notice specified in this subsection. The signs and contracts described in this subsection shall contain the following warning notice:

WARNING

Under Missouri law, an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof is not liable for an injury to or the death of a participant in equine or livestock activities resulting from the inherent risks of equine or livestock activities pursuant to the Revised Statutes of Missouri.

(L. 1994 S.B. 457, A.L. 2015 S.B. 12)

(2004) Exculpatory clause must show clear and unmistakable waiver and shifting of risk to be enforceable, and section does not relieve riding instructors or stable owners of duty to exercise reasonable care. Frank v. Mathews, 136 S.W.3d 196 (Mo.App.W.D.).

Paddlesport activities--definitions--immunity from liability,when--exemptions--posting of signs required, content.

537.327. 1. As used in this section, unless the context provides otherwise, the following terms shall mean:

(1) "Canoe", a watercraft which has an open top and is designed to hold one or more participants;

(2) "Canoeing, rafting, kayaking, or tubing", riding in or on, training in or on, using, paddling, or being a passenger in or on a canoe, kayak, raft, or tube, including a person assisting a participant;

(3) "Equipment", any accessory to a watercraft which is used for propulsion, safety, comfort, or convenience including, but not limited to, paddles, oars, and personal floatation devices;

(4) "Inherent risks of paddlesport activities", those dangers, hazards, or conditions which are an integral part of paddlesport activities in Missouri's free-flowing streams or rivers, including, but not limited to:

(a) Risks typically associated with watercraft, including change in water flow or current, submerged, semi-submerged, and overhanging objects, capsizing, swamping, or sinking of watercraft and resultant injury, hypothermia, or drowning;

(b) Cold weather or heat-related injuries and illnesses, including hypothermia, frostbite, heat exhaustion, heat stroke, and dehydration;

(c) An "act of nature" which may include rock fall, inclement weather, thunder and lightning, severe or varied temperature, weather conditions, and winds including tornadoes;

(d) Equipment failure or operator error;

(e) Attack or bite by animals;

(f) The aggravation of injuries or illnesses because they occurred in remote places where there are no available medical facilities;

(5) "Kayak", a watercraft similar to a canoe with a covered top which may have more than one circular opening to hold participants, or designed to permit a participant to sit on top of an enclosed formed seat;

(6) "Outfitter", any individual, group, club, partnership, corporation, or business entity, whether or not operating for profit or not for profit, or any employee or agent, which sponsors, organizes, rents, or provides to the general public the opportunity to use any watercraft by a participant on Missouri's free-flowing streams or rivers;

(7) "Paddlesport activity", canoeing, rafting, or kayaking in or on a watercraft as follows:

(a) A competition, exercise, or undertaking that involves a watercraft;

(b) Training or teaching activities;

(c) A ride, trip, tour, or other activity, however informal or impromptu, whether or not a fee is paid, that is sponsored by an outfitter;

(d) A guided trip, tour, or other activity, whether or not a fee is paid, that is sponsored by an outfitter;

(8) "Participant", any person, whether amateur or professional, whether or not a fee is paid, which rents, leases, or uses watercraft or is a passenger on a rented, leased, or used watercraft participating in a paddlesport activity;

(9) "Personal floatation device", a life jacket, floatable cushion, or other device approved by the United States Coast Guard;

(10) "Raft", an inflatable watercraft which has an open top and is designed to hold one or more participants;

(11) "Tube", an inflatable tire inner tube or similar inflatable watercraft which has an open top capable of holding one or more participants;

(12) "Watercraft", any canoe, kayak, raft, or tube propelled by the use of paddles, oars, hands, poles, or other nonmechanical, nonmotorized means of propulsion.

2. Except as provided in subsection 4 of this section, an outfitter shall not be liable for any injury to or the death of a participant resulting from the inherent risks of paddlesport activities and, except as provided in subsection 4 of this section, no participant or a participant's representative shall make any claim against, maintain any action against, or recover from an outfitter for injury, loss, damage, or death of the participant resulting from any of the inherent risks of paddlesport activities.

3. This section shall not apply to any employer-employee relationship governed by the provisions of chapter 287.

4. The provisions of subsection 2 of this section shall not prevent or limit the liability of an outfitter that:

(1) Intentionally injures the participant;

(2) Commits an act or omission that constitutes negligence for the safety of a participant in a paddlesport activity and that negligence is the proximate cause of the injury or death of a participant;

(3) Provides unsafe equipment or watercraft to a participant and knew or should have known that the equipment or watercraft was unsafe to the extent that it did cause the injury;

(4) Fails to provide a participant a United States Coast Guard-approved personal floatation device; or

(5) Fails to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

5. Every outfitter shall post and maintain signs which contain the warning notice specified in this subsection. Such signs shall be placed in a clearly visible location on or near areas where the outfitter conducts paddlesport activities. The warning notice specified in this subsection shall appear on the sign in black letters on a white background with each letter to be a minimum of one inch in height. Every written contract entered into by an outfitter for the providing of watercraft to a participant shall contain the warning notice specified in this subsection. The signs and contracts described in this subsection shall contain the following warning notice: "WARNING Under Missouri law, an outfitter is not liable for an injury to or the death of a participant in paddlesport activities resulting from the inherent risks of paddlesport activities pursuant to the Revised Statutes of Missouri.".

6. This section shall not be construed to limit or modify any defense or immunity already existing in statute or common law or to affect any claim occurring prior to August 28, 2005.

(L. 2005 S.B. 346)

Malicious trespass--to personalty--double damages--issuance ofattachment, when.

537.330. If any person shall maliciously or wantonly damage or destroy any personal property, goods, chattels, furniture or livestock, the person so offending shall pay to the party injured double the value of the things so damaged or destroyed; and upon an affidavit that said damage or destruction was wantonly or maliciously done, it shall be a good ground for an attachment to issue, as in other cases by attachment.

(RSMo 1939 § 3688)

Prior revisions: 1929 § 3298; 1919 § 4249; 1909 § 5455

(2000) Section applies to both tangible and intangible personal property, and includes delivery and distribution routes held by independent contract carriers for newspaper chain. Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32 S.W.3d 592 (Mo.App.E.D.).

Trespass on realty--treble damages recoverable, when--rules fortrimming, removing, and controlling trees.

537.340. 1. If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person, including any governmental entity, or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, or any ice or other substance or material being a part of the realty, or any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which such person has no interest or right, standing, lying or being on land not such person's own, or shall knowingly break the glass or any part of it in any building not such person's own, the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs. Any person filing a claim for damages pursuant to this section need not prove negligence or intent.

2. Notwithstanding the provisions of subsection 1 of this section, the following rules shall apply to the trimming, removing, and controlling of trees and other vegetation by any electric supplier:

(1) Every electric supplier that operates electric transmission or distribution lines shall have the authority to maintain the same by trimming, removing, and controlling trees and other vegetation posing a hazard to the continued safe and reliable operation thereof;

(2) An electric supplier may exercise its authority under subdivision (1) of this subsection if the trees and other vegetation are within the legal description of any recorded easement or, in the absence of a recorded easement, the following:

(a) Within ten feet, plus one-half the length of any attached cross arm, of either side of the centerline of electricity lines potentially energized at or below 34.5 kilovolts measured line to line and located within the limits of any city; or

(b) Within thirty feet of either side of the centerline of electricity lines potentially energized at or below 34.5 kilovolts measured line to line and located outside the limits of any city; or

(c) Within fifty feet of either side of the centerline of electricity lines potentially energized between 34.5 and one hundred kilovolts measured line to line; or

(d) Within the greater of the following for any electricity lines potentially energized at one hundred kilovolts or more measured line to line:

a. Seventy-five feet to either side of the centerline; or

b. Any required clearance distance adopted by either the Federal Energy Regulatory Commission or an Electric Reliability Organization authorized by the Energy Policy Act of 2005, 16 U.S.C. Section 824o. Such exercise shall be considered reasonable and necessary for the proper and reliable operation of electric service and shall create a rebuttable presumption, in claims for property damage, that the electric supplier acted with reasonable care, operated within its rights regarding the operation and maintenance of its electricity lines, and has not committed a trespass;

(3) An electric supplier may trim, remove, and control trees and other vegetation outside the provisions in subdivision (2) of this subsection if such actions are necessary to maintain the continued safe and reliable operation of its electric lines;

(4) An electric supplier may secure from the owner or occupier of land greater authority to trim, remove, and control trees and other vegetation than the provisions set forth in subdivision (2) of this subsection and may exercise any and all rights regarding the trimming, removing, and controlling of trees and other vegetation granted in any easement held by the electric supplier;

(5) An electric supplier may trim or remove any tree of sufficient height outside the provisions of subdivision (2) of this subsection when such tree, if it were to fall, would threaten the integrity and safety of any electric transmission or distribution line and would pose a hazard to the continued safe and reliable operation thereof;

(6) Prior to the removal of any tree under the provisions of subdivision (5) of this subsection, an electric supplier shall notify the owner or occupier of land, if available, at least fourteen days prior to such removal unless either the electric supplier deems the removal to be immediately necessary to continue the safe and reliable operation of its electricity lines, or the electric supplier is trimming or removing trees and other vegetation following a major weather event or other emergency situation;

(7) If any tree which is partially trimmed by an electric supplier dies within three months as a result of said trimming, the owner or occupier of land upon which the tree was trimmed may request in writing that the electric supplier remove said tree at the electric supplier's expense. The electric supplier shall respond to such request within ninety days;

(8) Nothing in this subsection shall be interpreted as requiring any electric supplier to fully exercise the authorities granted in this subsection.

3. For purposes of this section, the term "electric supplier" means any rural electric cooperative that is subject to the provisions of chapter 394, and any electrical corporation which is required by its bylaws to operate on the not-for-profit cooperative business plan, with its consumers who receive service as the stockholders of such corporation, and which holds a certificate of public convenience and necessity to serve a majority of its customer-owners in counties of the third classification as of August 28, 2003.

(RSMo 1939 § 3681, A.L. 2000 H.B. 1097, A.L. 2008 S.B. 958)

Prior revisions: 1929 § 3291; 1919 § 4242; 1909 § 5448

(2000) Section can be violated by either entering land wrongfully and felling trees or entering land with the landowner's consent and then exceeding the scope of that consent by felling trees without permission. Ridgway v. TTnT Development Corp., 26 S.W.3d 428 (Mo.App.S.D.).

Definitions for sections 537.345 to 537.347 and 537.351.

537.345. As used in sections 537.345 to 537.347, and section 537.351, the following terms mean:

(1) "Charge", the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes;

(2) "Land", all real property, land and water, and all structures, fixtures, equipment and machinery thereon;

(3) "Owner", any individual, legal entity or governmental agency that has any ownership or security interest whatever or lease or right of possession in land;

(4) "Recreational use", hunting, fishing, camping, picnicking, biking, nature study, winter sports, viewing or enjoying archaeological or scenic sites, or other similar activities undertaken for recreation, exercise, education, relaxation, or pleasure on land owned by another;

(5) "Trespasser", any person who enters on the property of another without permission and without an invitation, express or implied regardless of whether actual notice of trespass was given or the land was posted in accordance with the provisions of sections 569.140 and 569.145.

(L. 1983 S.B. 162 § 1, A.L. 2012 S.B. 628)

(2007) Missouri Recreational Use Act does not violate equal protection by granting immunity to landowners in unincorporated but not incorporated areas or by granting immunity to landowners who open land to public at no charge but not to those who charge a fee for access. Foster v. St. Louis County, 239 S.W.3d 599 (Mo.banc).

Landowner owes no duty of care to persons entering without fee to keepland safe for recreational use.

537.346. Except as provided in sections 537.345 to 537.348, and section 537.351, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

(L. 1983 S.B. 162 § 2, A.L. 2012 S.B. 628)

Landowner directly or indirectly invites or permits persons on landfor recreation, effect.

537.347. Except as provided in sections 537.345 to 537.348, an owner of land who directly or indirectly invites or permits any person to enter his or her land for recreational use, without charge, whether or not the land is posted, or who directly or indirectly invites or permits any person to enter his or her land for recreational use in compliance with a state-administered recreational access program, does not thereby:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon such person the status of an invitee, or any other status requiring of the owner a duty of special or reasonable care;

(3) Assume responsibility for or incur liability for any injury to such person or property caused by any natural or artificial condition, structure or personal property on the premises; or

(4) Assume responsibility for any damage or injury to any other person or property caused by an act or omission of such person.

(L. 1983 S.B. 612 § 3, A.L. 2006 H.B. 1617 & 1374)

Landowner liable, when--definitions.

537.348. Nothing in this act shall be construed to create liability, but it does not limit liability that otherwise would be incurred by those who use the land of others, or by owners of land for:

(1) Malicious or grossly negligent failure to guard or warn against a dangerous condition, structure, personal property which the owner knew or should have known to be dangerous, or negligent failure to guard or warn against an ultrahazardous condition which the owner knew or should have known to be dangerous;

(2) Injury suffered by a person who has paid a charge for entry to the land; or

(3) Injuries occurring on or in:

(a) Any land within the corporate boundaries of any city, municipality, town, or village in this state;

(b) Any swimming pool. "Swimming pool" means a pool or tank, especially an artificial pool or tank, intended and adapted for swimming and held out as a swimming pool;

(c) Any residential area. "Residential area" as used herein means a tract of land of one acre or less predominately used for residential purposes, or a tract of land of any size used for multifamily residential services; or

(d) Any noncovered land. "Noncovered land" as used herein means any portion of any land, the surface of which portion is actually used primarily for commercial, industrial, mining or manufacturing purposes; provided, however, that use of any portion of any land primarily for agricultural, grazing, forestry, conservation, natural area, owner's recreation or similar or related uses or purposes shall not under any circumstances be deemed to be use of such portion for commercial, industrial, mining or manufacturing purposes.

(L. 1983 S.B. 162 § 4, A.L. 1984 S.B. 580)

CROSS REFERENCE:

Swimming pools, certain pools, refusal to allow disabled persons to wear life jackets, penalty, 577.161

Liability of landowner to trespasser, immunity where trespasserunder influence of drugs or alcohol--limitations.

537.349. A person or legal entity owning or controlling an interest in real property, or an agent of such person or entity, shall not incur any liability for the death of or injury to a trespasser upon the property resulting from or arising by reason of the trespasser's commission of the offense of trespass if the normal faculties of such trespasser are substantially impaired by alcohol or the illegal influence of a controlled substance as defined in section 195.010. The person or entity owning or controlling an interest in such real property shall not be immune from liability if negligence or willful and wanton misconduct on the part of such person or entity or agent thereof is the proximate cause of the death of or injury to the trespasser.

(L. 1991 S.B. 125 & 341 § 3)

Effective 7-1-92

Double damages for throwing down gates and fences--exception.

537.350. If any person shall voluntarily throw down or open any doors, bars, gates or fences, and leave the same open or down, other than those that lead into his own enclosure, or shall voluntarily throw down, open or remove any partition fence, without giving six months' written notice to the person owning the adjoining fields, if they are cultivated lands, he shall pay to the party injured the sum of five dollars, and double the amount of damages he shall sustain by reason of such doors, bars, gates and fences having been thrown down or opened, with costs; provided, that this section shall not be construed to apply to fences erected across any watercourse in this state which carries sufficient water to move logs for lumbering purposes, of ten inches or more in diameter, and railroad crossties and piling; provided further, that any corporation, company or individual driving such logs, crossties or piling, or having placed the same in any such stream with the intent to drive or float the same, shall be liable for the actual damages which may result therefrom to any owner of land bordering on any such stream; but this section shall not be construed to include a fence erected across any such stream and not enclosing a farm or plantation, nor where, in any case, it is apparent that such fence was erected across such stream for the mere purpose of hindering the free passage of such logs, crossties or piling, or for the purpose of extorting money from the corporation, company or individual engaged in driving such logs, crossties or piling.

(RSMo 1939 § 3682)

Prior revisions: 1929 § 3292; 1919 § 4243; 1909 § 5449

Trespassers, no duty of care by owners, exception--liability forphysical injury or death, when.

537.351. 1. Except as provided in subsection 2 of this section, a possessor of real property, including an owner, lessee, or other occupant, or an agent of such owner, lessee, or other occupant, owes no duty of care to a trespasser except to refrain from harming the trespasser by an intentional, willful, or wanton act. A possessor of real property may use justifiable force to repel a criminal trespasser as provided by section 563.074.

2. A possessor of real property may be subject to liability for physical injury or death to a trespasser in the following situations:

(1) If the trespasser is a child who is harmed by a dangerous artificial condition on the land; and

(a) The possessor knew or should have known that children were likely to trespass at the location of the condition;

(b) The condition is one which the possessor knew or reasonably should have known involved an unreasonable risk of death or serious physical injury to such children;

(c) The injured child because of the child's youth did not discover the condition or realize the risk involved in the intermeddling with the condition or in coming within the area made dangerous by the condition;

(d) The utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and

(e) The possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child; or

(2) The possessor knew or should have known that trespassers consistently intrude upon a limited area of the possessor's land where the trespasser was harmed, the harm resulted from a dangerous artificial condition on the land; and

(a) The possessor created or maintained the artificial condition that caused the injury;

(b) The possessor knew that the condition was likely to cause death or serious bodily harm to trespassers;

(c) The possessor knew or should have known that the condition was of such a nature that trespassers would not discover it; and

(d) The possessor failed to exercise reasonable care to warn trespassers of the condition and the risk involved; or

(3) If the possessor knew of the trespasser's presence on the land and failed to exercise ordinary care as to active operations carried out on the land.

3. This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to liability established under state law or available under common law to which a possessor of real property may be entitled under circumstances not covered by this section.

(L. 2012 S.B. 628)

Liability for damage or destruction of field crop products,when--court costs awarded, when.

537.353. 1. Any person or entity who knowingly damages or destroys any field crop product that is grown for personal or commercial purposes, or for testing or research purposes in the context of a product development program in conjunction or coordination with a private research facility, a university, or any federal, state or local government agency, shall be liable for double damages pursuant to this section.

2. Notwithstanding the provisions of section 537.340, or the provisions of subsection 1 of this section, any person or entity who negligently commits any of the acts described in subsection 1 of this section shall be liable only for compensatory damages.

3. In awarding damages pursuant to subsections 1 and 2 of this section, the courts shall consider the following:

(1) The market value of the crop prior to damage or destruction; and

(2) The actual damages involving production, research, testing replacement and crop development costs directly related to the crop that has been damaged or destroyed.

4. In addition, the court may award court costs, including reasonable attorneys fees.

(L. 2001 S.B. 462, A.L. 2007 H.B. 344)

Private property, permission by owner to hunt, fish, or recreate,limitation on privilege.

537.355. An owner of land who either directly or indirectly invites or permits without charge any person to use such property for hunting or fishing purposes or other recreational purpose, including but not limited to any aircraft or ultralight vehicle activity, does not thereby:

(1) Confer upon such person the legal status of an invitee or licensee and owes to such person only the duty of care as is owed to a trespasser under the law;

(2) Without the failure to exercise just ordinary care, assume responsibility for or incur liability for any injury to persons or property caused by an act or omission of such persons while hunting or fishing or engaging in other recreational activities, such as operating aircraft or ultralight vehicles;

(3) Without the failure to exercise just ordinary care, assume responsibility for or incur liability for any injury to persons or property, wherever such persons or property are located, caused while hunting or fishing or engaging in other recreational activities, such as operating aircraft or ultralight vehicles.

(L. 2008 H.B. 2034)

Single damages only recoverable, when.

537.360. On the trial of any action or prosecution brought upon sections 537.340, 537.350 and 537.370 if it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured or destroyed, was his own, the plaintiff in the action or prosecution shall receive single damages only, with costs.

(RSMo 1939 § 3684)

Prior revisions: 1929 § 3294; 1919 § 4245; 1909 § 5451

Penalties, how recovered.

537.370. The penalties mentioned in sections 537.340 and 537.350 may be recovered by civil action founded on said sections, or by indictment, or information, at the option of the party injured, in any court having jurisdiction of the same; and when the proceeding is by indictment, such penalties shall be paid into county treasury.

(RSMo 1939 § 3683)

Prior revisions: 1929 § 3293; 1919 § 4244; 1909 § 5450

Fires from railroad engines--damages.

537.380. Each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporation, and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf for its protection against such damages.

(RSMo 1939 § 5223)

Prior revisions: 1929 § 4766; 1919 § 9954; 1909 § 3151

Double damages for willful fires.

537.400. If any person shall willfully set on fire any woods, marshes or prairies whether his own or not, so as thereby to occasion any damage to any other person, such person shall make satisfaction in double damages to the party injured, to be recovered by civil action.

(RSMo 1939 § 3660)

Prior revisions: 1929 § 3270; 1919 § 4225; 1909 § 5433

Damages for backwater caused by boom across stream--attorney's fee.

537.410. Every corporation, person or association of persons who shall construct a boom across or in any of the streams or waters of this state shall be liable for all damages arising from backwater or overflow caused by the construction of such boom or the accumulation of logs, lumber or other floatables therein, and in all cases where judgment is rendered in any court for any damages occasioned as herein provided, the court shall allow the plaintiff a reasonable attorney's fee, to be taxed as costs in the case.

(RSMo 1939 § 5486)

Prior revisions: 1929 § 5044; 1919 § 10317; 1909 § 3473

Tenant for life or years liable for treble damages for waste.

537.420. If any tenant, for life or years, shall commit waste during his estate or term, of anything belonging to the tenement so held, without special license in writing so to do, he shall be subject to a civil action for such waste, and shall lose the thing wasted and pay treble the amount at which the waste shall be assessed.

(RSMo 1939 § 1939 § 3003)

Prior revisions: 1929 § 2616; 1919 § 6910; 1909 § 7913

(2002) Presence of liquidated damages clause in lease was not a waiver of right to sue under section and did not constitute implied license for tenant to commit waste. Brizendine v. Conrad, 71 S.W.3d 587 (Mo.banc).

Who may sue.

537.430. The action may be maintained by one who has the remainder or reversion in fee simple, after an intervening estate for life or years, and also by one who has a remainder or reversion for life or years only; and each of them shall recover such damages as it shall appear that he has suffered by the waste complained of.

(RSMo 1939 § 3004)

Prior revisions: 1929 § 2617; 1919 § 6911; 1909 § 7914

Heirs may sue for waste, when.

537.440. An heir may bring and maintain an action for waste done in the time of his ancestor, as well as in his own time.

(RSMo 1939 § 3005)

Prior revisions: 1929 § 2618; 1919 § 6912; 1909 § 7915

Tenant holding land after having aliened it liable for waste.

537.450. If a tenant of land commit any waste thereon after he has aliened it while he remains in possession, he shall be liable to the party injured for damages.

(RSMo 1939 § 3006)

Prior revisions: 1929 § 2619; 1919 § 6913; 1909 § 7916

Tenants liable to cotenants, when.

537.460. If a tenant in common, joint tenant or parcener commit waste, he shall be liable to his cotenants, jointly or severally, for damages.

(RSMo 1939 § 3007)

Prior revisions: 1929 § 2620; 1919 § 6914; 1909 § 7917

Conservators, liable for waste, when.

537.470. If a conservator commit waste of the estate of his protectee, he shall be liable to the protectee for damages, at the expiration of his conservatorship.

(RSMo 1939 § 3008, A.L. 1983 S.B. 44 & 45)

Prior revisions: 1929 § 2621; 1919 § 6915; 1909 § 7918

What damages recovered for waste.

537.480. Any person who is entitled to such civil action shall recover such damages as it shall appear that he has suffered by the waste complained of.

(RSMo 1939 § 3009)

Prior revisions: 1929 § 2622; 1919 § 6916; 1909 § 7919

Treble damages if waste was wantonly committed.

537.490. If in any action for waste, the jury find that the waste was wantonly committed, judgment shall be entered for three times the amount of the damages assessed.

(RSMo 1939 § 3010)

Prior revisions: 1929 § 2623; 1919 § 6917; 1909 § 7920

Where waste committed pending suit, receiver may take possession.

537.500. If the tenant in possession of any land shall, pending a suit to recover or charge said land, commit any waste thereon, the court in which the suit may be pending may order a receiver to take possession of the land.

(RSMo 1939 § 3013)

Prior revisions: 1929 § 2626; 1919 § 6920; 1909 § 7923

Actions for waste, brought against whom.

537.510. An action for waste may be brought against the representatives of a tenant, or, if instituted in the lifetime of the tenant, it may be revived against his representatives after his death.

(RSMo 1939 § 3011)

Prior revisions: 1929 § 2624; 1919 § 6918; 1909 § 7921

Interest as part of damages.

537.520. The jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages, in the nature of interest, over and above the value of the goods at the time of the conversion or seizure.

(RSMo 1939 § 3657)

Prior revisions: 1929 § 3267; 1919 § 4222; 1909 § 5430

Institutional vandalism, civil actions for damages orinjunction--attorney fees and costs.

537.523. 1. Irrespective of any criminal prosecution or the result thereof, any person incurring bodily injury or damage or loss to his property as a result of conduct in violation of section 574.085, 574.090* or 574.093* shall have a civil action to secure an injunction, damages or other appropriate relief in law or in equity against any and all persons who have violated section 574.085, 574.090* or 574.093*.

2. In any such action, whether a violation of section 574.085, 574.090* or 574.093* has occurred shall be determined according to the burden of proof used in other civil actions for similar relief.

3. Upon prevailing in such civil action, the plaintiff may recover:

(1) Both special and general damages; and

(2) Reasonable attorney fees and costs.

(L. 1988 S.B. 678 § 4)

*Formerly included ethnic intimidation as a result of conduct in violation of sections 574.090 and 574.093 which were repealed by S.B. 328, 1999.

Injunction and damages for interference with lawful hunting andtrapping.

537.524. 1. A court may enjoin conduct which would be in violation of section 578.151 or 578.152 upon petition by a person affected or who reasonably may be affected by such conduct, upon a showing that such conduct is threatened or that it has occurred on particular premises in the past and that it is not unreasonable to expect that under similar circumstances it will be repeated.

2. A court may award damages to any person adversely affected by a violation of section 578.151 or 578.152, which may include an award for punitive damages. In addition to other items of special damage, the measure of damages may include expenditures of the affected person for license and permit fees, travel, guides, special equipment and supplies, to the extent that such expenditures were rendered futile by interference with the lawful hunting or trapping of a wild animal.

(L. 1988 S.B. 434 & 435 § 4)

Tampering with computer data, computer equipment, or computerusers--damages--attorney fees, certain expenses, awarded when.

537.525. 1. In addition to any other civil remedy available, the owner or lessee of the computer system, computer network, computer program, computer service or data may bring a civil action against any person who violates sections 569.095 to 569.099 for compensatory damages, including any expenditures reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, computer service, or data was not altered, damaged, or deleted by the access.

2. In any action brought pursuant to this section, the court may award reasonable attorney's fees to a prevailing plaintiff.

(L. 1987 H.B. 208 § 1)

Actions for damages for conduct or speech at public hearings andmeetings to be considered on expedited basis--procedural issues.

537.528. 1. Any action against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding before a tribunal or decision-making body of the state or any political subdivision of the state is subject to a special motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment that shall be considered by the court on a priority or expedited basis to ensure the early consideration of the issues raised by the motion and to prevent the unnecessary expense of litigation. Upon the filing of any special motion described in this subsection, all discovery shall be suspended pending a decision on the motion by the court and the exhaustion of all appeals regarding the special motion.

2. If the rights afforded by this section are raised as an affirmative defense and if a court grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment filed within ninety days of the filing of the moving party's answer, the court shall award reasonable attorney fees and costs incurred by the moving party in defending the action. If the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion.

3. Any party shall have the right to an expedited appeal from a trial court order on the special motions described in subsection 2 of this section or from a trial court's failure to rule on the motion on an expedited basis.

4. As used in this section, a "public meeting in a quasi-judicial proceeding" means and includes any meeting established and held by a state or local governmental entity, including without limitations meetings or presentations before state, county, city, town or village councils, planning commissions, review boards or commissions.

5. Nothing in this section limits or prohibits the exercise of a right or remedy of a party granted pursuant to another constitutional, statutory, common law or administrative provision, including civil actions for defamation.

6. If any provision of this section or the application of any provision of this section to a person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.

7. The provisions of this section shall apply to all causes of actions.

(L. 2004 S.B. 807 § 537.800, A.L. 2012 S.B. 628)

Limitation on liability for injury or death at fairs orfestivals--signs to be posted, content.

537.550. 1. No county, city or village with ten thousand or fewer inhabitants that organizes, sponsors, or conducts any fair, festival, or similar gathering shall be liable, except as provided in sections 537.600 to 537.650, for an injury or death of any person attending the event, and no person attending the event shall make any claim against, or recover from, any such county, city or village for injury, loss, damage, or death of the person attending the event.

2. Each county, city or village governed by this section shall post and maintain signs which contain the warning notice specified in this section. The signs shall be placed in a clearly visible location at major entrances to the event and throughout the event location as determined by the governing authority of the county, city or village. The signs described in this section shall be in black letters on a white background with each letter to be a minimum of one inch in height and contain substantially the following warning notice:

WARNING

Under Missouri law, (enter county, city or village name) is not liable for an injury to or the death of any person resulting from the inherent risks of participating in or observing any activities at this event pursuant to the Revised Statutes of Missouri.

(L. 2004 H.B. 795, et al).

No civil liability for forcible entry into a vehicle for purpose ofremoving an unsupervised minor, when.

537.555. 1. A person shall * not be held civilly liable for damages resulting from the forcible entry into a vehicle for the purpose of removing an unsupervised minor if such person:

(1) Determines that the vehicle is locked or there is no other reasonable method for removing the minor from the vehicle;

(2) Has a good faith belief that forcible entry into the vehicle is necessary because the minor is in imminent danger of suffering harm if not immediately removed from the vehicle;

(3) Contacts emergency response personnel including any firefighter, emergency medical technician, law enforcement officer, registered nurse, physician, or first responder prior to forcibly entering the vehicle;

(4) Remains with the minor at a safe location reasonably close to the vehicle until emergency response personnel arrives; and

(5) Uses no more force to enter the vehicle and remove the minor from the vehicle than was necessary under the circumstances.

2. Nothing in this section shall provide immunity from civil liability for actions to aid a minor in addition to what is authorized by this section.

(L. 2016 H.B. 1649)

Effective 7-01-16

*Word "be" appears here in original rolls.

Citation--definitions--immunity from liability for claims relatingto weight gain or obesity, when, exceptions--petition,contents--effective date.

537.595. 1. This section may be known as the "Commonsense Consumption Act".

2. As used in this section, the following terms mean:

(1) "Claim", any claim by or on behalf of a natural person, as well as any derivative or other claim arising therefrom asserted by or on behalf of any other person;

(2) "Generally known condition allegedly caused by or allegedly likely to result from long-term consumption", a condition generally known to result or to likely result from the cumulative effect of consumption and not from a single instance of consumption;

(3) "Knowing or willful violation of federal or state law", that:

(a) The conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers; and

(b) The conduct constituting the violation was not required by regulations, orders, rules, or other pronouncements of, or statutes administered by, a federal, state, or local government agency;

(4) "Other person", any individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or private attorney general.

3. Except as exempted in subsection 4 of this section, a manufacturer, packer, distributor, carrier, holder, seller, marketer, retailer, or advertiser of a food, as defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(f)), as amended, but shall not include alcoholic beverages, or an association of one or more such entities shall not be subject to civil liability under any state law, including all statutes, regulations, rules, common law, public policies, court or administrative decisions or decrees, or other state actions having the effect of law, for any claim arising out of weight gain, obesity, or a health condition associated with weight gain or obesity.

4. The provisions of subsection 3 of this section shall not preclude civil liability where the claim of weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food is based on:

(1) A material violation of an adulteration or misbranding requirement prescribed by statute or regulation of the state of Missouri or the United States and the claimed injury was proximately caused by such violation; or

(2) Any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, provided that such violation is knowing and willful, and the claimed injury was proximately caused by such violation.

The provisions of subsection 3 of this section shall not preclude civil liability for breach of express contract or express warranty in connection with the purchase of food.

5. In any action exempted under subdivision (1) or (2) of subsection 4 of this section, the petition initiating such action shall state with particularity the following: the statute, regulation, or other state or federal law that was allegedly violated, the facts that are alleged to constitute a material violation of such statute or regulation, and the facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff. In any action exempted under subdivision (2) of subsection 4 of this section, the petition initiating such action shall also state with particularity facts sufficient to support a reasonable inference that the violation occurred with the intent to deceive or injure consumers or with the actual knowledge that such violation was injurious to consumers. For purposes of applying this section the pleading requirements under this section are deemed part of state substantive law and not merely procedural provisions.

6. In any action exempted under subsection 4 of this section, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence, resolve the motion to dismiss, or to prevent undue prejudice to that party. During the pendency of any stay of discovery under this subsection and unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the petition shall treat all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of such party that are relevant to the allegations as if they were the subject of a continuing request for production of documents from an opposing party under the Missouri rules of civil procedure.

7. The provisions of this section shall apply to all covered claims pending on or filed after January 1, 2005, regardless of when the claim arose.

(L. 2004 H.B. 1115 § 537.900)

Effective 1-01-05

Sovereign immunity in effect--exceptions.

537.600. 1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition. In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.

2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.

3. The term "public entity" as used in this section shall include any multistate compact agency created by a compact formed between this state and any other state which has been approved by the Congress of the United States.

(L. 1978 H.B. 1650 § 1, A.L. 1985 S.B. 323, A.L. 1989 H.B. 161, A.L. 2005 H.B. 58)

(2001) Section does not bar claims for contribution when compensatory damage claims for injuries result from dangerous conditions on public property and a joint obligation on the liability is shared by tort-feasors. McNeill Trucking Company, Inc. v. Missouri State Highway and Transportation Commission, 35 S.W.3d 846 (Mo.banc).

(2006) Section waives governmental employer's sovereign immunity for its employees' negligent operation of motor vehicle; as official immunity is personal to the governmental employee, the employer is not shielded from liability based upon respondeat superior. Davis v. Lambert-St. Louis International Airport, 193 S.W.3d 760 (Mo.banc).

(2009) Operation of a city-owned emergency medical service is a governmental function, even though the city charges a fee for the service; that service provides a general public benefit and serves the public health and welfare. Richardson v. City of St. Louis, 293 S.W.3d 133 (Mo.App. E.D.).

Supervision of community service work, immunity from liability,when--definitions--community service work not deemed employmentand worker not an employee.

537.602. 1. As used in this section the following terms shall mean:

(1) "Community service work", any work which is performed without compensation and is required in exchange for deferred prosecution of any criminal charge by any federal, state, or local prosecutor under a written agreement;

(2) "Entity", includes any person, for-profit or not-for-profit business, agency, group, charity, organization, or any unit of federal, state, or local government or any of their employees.

2. Any entity which supervises community service work performed as a requirement for deferment of any criminal charge under a written agreement with a federal, state, or local prosecutor, or any entity which derives benefits from the performance of community service work shall be immune from any suit by the person performing the community service work or by any person deriving a cause of action from the person performing the community service work if that cause of action arises from the supervision of the work performed, except that the entity supervising the work shall not be immune from any suit for gross negligence or for an intentional tort.

3. Community service work shall not be deemed employment within the meaning of the provisions of chapter 288 and a person performing community service work under the provisions of this section shall not be deemed an employee within the meaning of the provisions of chapter 287.

(L. 2014 H.B. 1231)

Liability insurance for tort claims may be purchased bywhom--limitation on waiver of immunity--maximum amount payablefor claims out of single occurrence--exception--apportionment ofsettlements--inflation--penalties.

537.610. 1. The commissioner of administration, through the purchasing division, and the governing body of each political subdivision of this state, notwithstanding any other provision of law, may purchase liability insurance for tort claims, made against the state or the political subdivision, but the maximum amount of such coverage shall not exceed two million dollars for all claims arising out of a single occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, and no amount in excess of the above limits shall be awarded or settled upon. Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.

2. The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed two million dollars for all claims arising out of a single accident or occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287.

3. No award for damages on any claim against a public entity within the scope of sections 537.600 to 537.650, shall include punitive or exemplary damages.

4. If the amount awarded to or settled upon multiple claimants exceeds two million dollars, any party may apply to any circuit court to apportion to each claimant his proper share of the total amount limited by subsection 1 of this section. The share apportioned each claimant shall be in the proportion that the ratio of the award or settlement made to him bears to the aggregate awards and settlements for all claims arising out of the accident or occurrence, but the share shall not exceed three hundred thousand dollars.

5. The limitation on awards for liability provided for in this section shall be increased or decreased on an annual basis effective January first of each year in accordance with the Implicit Price Deflator for Personal Consumption Expenditures as published by the Bureau of Economic Analysis of the United States Department of Commerce. The current value of the limitation shall be calculated by the director of the department of insurance, financial institutions and professional registration, who shall furnish that value to the secretary of state, who shall publish such value in the Missouri Register as soon after each January first as practicable, but it shall otherwise be exempt from the provisions of section 536.021.

6. Any claim filed against any public entity under this section shall be subject to the penalties provided by supreme court rule 55.03, or any successor rule.

(L. 1978 H.B. 1650 § 2, A.L. 1989 H.B. 161, A.L. 1999 S.B. 295 & 46, A.L. 2009 H.B. 481)

CROSS REFERENCE:

Liability of state and public entities, increases to be effective on certain causes of actions, when, 537.615

(2000) Statutory cap does not apply to postjudgment interest on damage awards against the State. Benoit v. Missouri Highway and Transportation Commission, 33 S.W.3d 663 (Mo.App.S.D.).

Liability of state increase to apply, when.

537.615. The provisions of this act* increasing the liability of the state and its public entities shall only be applied to those causes of action that accrue on or after January 1, 2000.

(L. 1999 S.B. 295 & 46 § 1)

*"This act" (S.B. 295 & 46, 1999) contained numerous sections. Consult Disposition of Sections table for a definitive listing.

Political subdivisions may jointly create entity to provideinsurance--entity created not deemed an insurance company orinsurer.

537.620. Notwithstanding any direct or implied prohibitions in chapter 375, 377, or 379, any three or more political subdivisions of this state may form a business entity for the purpose of providing liability and all other insurance, including insurance for elderly or low-income housing in which the political subdivision has an insurable interest, for any of the subdivisions upon the assessment plan as provided in sections 537.600 to 537.650. Any public governmental body or quasi-public governmental body, as defined in section 610.010, and any political subdivision of this state or any other state may join this entity and use public funds to pay any necessary assessments. Except for being subject to the regulation of the director of the department of insurance, financial institutions and professional registration under sections 375.930 to 375.948, sections 375.1000 to 375.1018, and sections 537.600 to 537.650, any such business entity shall not be deemed to be an insurance company or insurer under the laws of this state, and the coverage provided by such entity and the administration of such entity shall not be deemed to constitute the transaction of an insurance business. Risk coverages procured under this section shall not be deemed to constitute a contract, purchase, or expenditure of public funds for which a public governmental body, quasi-public governmental body, or political subdivision is required to solicit competitive bids.

(L. 1978 H.B. 1650 § 3, A.L. 1988 S.B. 532, A.L. 1999 S.B. 28, A.L. 2006 H.B. 1703, A.L. 2011 S.B. 57)

Procedure to form insurance entity.

537.625. 1. Any group of subdivisions desiring to provide liability and all other insurance for its members shall pay a license fee of one hundred dollars and file articles of association with the director of the department of insurance, financial institutions and professional registration. The articles shall be filed in accordance with the provisions of sections 375.201 to 375.236. The articles shall include the names of the political subdivisions initially associated, the method by which other subdivisions may be admitted to the association as members, the purposes for which organized, the amount of the initial assessment which is to be paid into the association, the method of assessment thereafter and the maximum amount of any assessment which the association may make against any member. The articles of association shall provide for bylaws and for the amendment of the bylaws and the articles of association.

2. Each association shall designate and maintain a registered agent within this state. Service upon the agent is service upon the association and each of its members.

3. The articles of association shall be accompanied by a copy of the initial bylaws of the association. The bylaws shall provide for a governing body for the association, a manner of election thereof, the manner in which assessments will be made, the specific kinds of insurance or indemnification which will be offered, the classes of membership which will be offered, and may provide that assessments of various amounts for particular classes of membership may be made. All assessments shall be uniform within classes. The bylaws may provide for the transfer of risks to other insurance companies or for reinsurance.

(L. 1978 H.B. 1650 § 4, A.L. 1988 S.B. 532)

Effective 6-2-88

Director to approve articles and issue license.

537.630. The director of the department of insurance, financial institutions and professional registration shall, within thirty days after the articles of association are filed with him, determine if the proposed association meets the requirements of sections 537.600 to 537.650. If it does, he shall issue a license to the association authorizing it to do business for a one-year period.

(L. 1978 H.B. 1650 § 5)

Entity to be treated as corporation--not to produce profit--may paydividends, when.

537.635. The association may, on the seventh day thereafter, commence to do business. The association shall be a body corporate, and shall do business as a corporation. No member of the association shall be liable for any amounts because of his or her membership in the association other than his or her assessments as provided in the articles of association and the bylaws of the association. The business of the association shall be conducted so as to preclude any distribution of income, profit or property of the association to the individual members thereof except in payment of claims or indemnities or upon the final dissolution of the association, but the association may pay dividends to its members as long as the association has a positive surplus both before and after any such dividend is declared.

(L. 1978 H.B. 1650 § 6, A.L. 1999 S.B. 28)

Director to examine--renewal license fee--amendments to articles.

537.640. 1. The director of the department of insurance, financial institutions and professional registration shall be authorized in accordance with section 374.205 to examine into the affairs of any association organized under the provisions of sections 537.620 to 537.650 and may, in accordance with section 374.045, make such rules and regulations as may be necessary for the execution of the functions vested in him. Annually thereafter, within thirty days before the expiration of its license, each association shall pay a renewal license fee of one hundred dollars and shall file a statement with the director of the department of insurance, financial institutions and professional registration giving a report of its activities for the preceding year.

2. Any existing association shall also, at the time it files for renewal of its license, file any amendments to its articles of association or bylaws which have been adopted in the preceding year.

(L. 1978 H.B. 1650 § 7, A.L. 2006 H.B. 1703)

Director may take charge of entity, when.

537.645. If at any time any association fails or refuses to pay any claim finally adjudged to be due pursuant to the provisions of its articles of association and bylaws, or if the director of the department of insurance, financial institutions and professional registration determines that the association is unable to satisfy its contractual obligations, he shall immediately take charge of the association, its assets and affairs, and wind up same as now provided by law in the case of life insurance companies.

(L. 1978 H.B. 1650 § 8)

Premium tax not required.

537.650. No association organized pursuant to the provisions of sections 537.620 to 537.650 shall be required to pay any premium tax in connection with the conduct of its business.

(L. 1978 H.B. 1650 § 9)

Tort victims' compensation fundestablished--definitions--notification of punitive damage awardto attorney general, lien for deposit into fund--legal servicesfor low-income people.

537.675. 1. As used in sections 537.675 through 537.693, the following terms mean:

(1) "Annual claims", that period of time commencing on the first day of January of every year after December 31, 2002, and ending on the last day of that calendar year;

(2) "Commission", the labor and industrial relations commission;

(3) "Division", the division of workers' compensation;

(4) "Punitive damage final judgment", an award for punitive damages excluding interest that is no longer subject to review by courts of this state or of the United States;

(5) "Uncompensated tort victim", a person who:

(a) Is a party in a personal injury or wrongful death lawsuit; or is a tort victim whose claim against the tort-feasor has been settled for the policy limits of insurance covering the liability of such tort-feasor and such policy limits are inadequate in light of the nature and extent of damages due to the personal injury or wrongful death;

(b) Unless described in paragraph (a) of this subdivision:

a. Has obtained a final monetary judgment in that lawsuit described in paragraph (a) of this subdivision against a tort-feasor for personal injuries, or wrongful death in a case in which all appeals are final;

b. Has exercised due diligence in enforcing the judgment; and

c. Has not collected the full amount of the judgment;

(c) Is not a corporation, company, partnership or other incorporated or unincorporated commercial entity;

(d) Is not any entity claiming a right of subrogation;

(e) Was not on house arrest and was not confined in any federal, state, regional, county or municipal jail, prison or other correctional facility at the time he or she sustained injury from the tort-feasor;

(f) Has not pleaded guilty to or been found guilty of two or more felonies, where such two or more felonies occurred within ten years of the occurrence of the tort in question, and where either of such felonies involved a controlled substance or an act of violence; and

(g) Is a resident of the state of Missouri or sustained personal injury or death by a tort which occurred in the state of Missouri.

2. There is created the "Tort Victims' Compensation Fund". Unexpended moneys in the fund shall not lapse at the end of the biennium as provided in section 33.080.

3. Any party receiving a judgment final for purposes of appeal for punitive damages in any case filed in any division of any circuit court of the state of Missouri shall notify the attorney general of the state of Missouri of such award, except for actions claiming improper health care pursuant to chapter 538. The state of Missouri shall have a lien for deposit into the tort victims' compensation fund to the extent of fifty percent of the punitive damage final judgment which shall attach in any such case after deducting attorney's fees and expenses. In each case, the attorney general shall serve a lien notice by certified mail or registered mail upon the party or parties against whom the state has a claim for collection of its share of a punitive damage final judgment. On a petition filed by the state, the court, on written notice to all interested parties, shall adjudicate the rights of the parties and enforce the lien. The lien shall not be satisfied out of any recovery until the attorney's claim for fees and expenses is paid. The state can file its lien in all cases where punitive damages are awarded upon the entry of the judgment final for purposes of appeal. The state cannot enforce its lien until there is a punitive damage final judgment. Cases resolved by arbitration, mediation or compromise settlement prior to a punitive damage final judgment are exempt from the provisions of this section. Nothing in this section shall hinder or in any way affect the right or ability of the parties to any claim or lawsuit to compromise or settle such claim or litigation on any terms and at any time the parties desire.

4. The state of Missouri shall have no interest in or right to intervene at any stage of any judicial proceeding pursuant to this section, except to enforce its lien rights as provided in subsection 3 of this section.

5. Twenty-six percent of all payments deposited into the tort victims' compensation fund and all interest accruing on the principal regardless of source or designation shall be transferred to the basic civil legal services fund established in section 477.650. Moneys in the tort victims' compensation fund shall not be used to pay any portion of a refund mandated by Article X, Section 18 of the Constitution.

(L. 1987 H.B. 700 § 40, A.L. 1996 S.B. 869, A.L. 2001 H.B. 107, A.L. 2008 S.B. 1016, A.L. 2010 H.B. 1965)

(2002) Provision permitting state to assert lien on 50% of final judgment for punitive damages does not violate the excessive fine provision of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, or the takings clause of the Fifth Amendment. Hoskins v. Business Men's Assurance, 79 S.W.3d 901 (Mo.banc).

Percentage of fund to be used to assist uncompensated tortvictims--filing of claims, procedure.

537.678. 1. Seventy-four percent of all payments received by the tort victims' compensation fund regardless of source or designation shall, upon appropriation, be appropriated to the division of workers' compensation to assist uncompensated tort victims and shall be used for no other purpose. Notwithstanding the provisions of section 33.080, any balance remaining in the budget of the division of workers' compensation for compensation of uncompensated tort victims shall not be transferred to general revenue but shall remain in the fund. Moneys in the tort victims' compensation fund shall not be used to pay any portion of a refund mandated by Article X, Section 18 of the Constitution.

2. The division of workers' compensation shall, pursuant to the provisions of sections 537.678 to 537.693, have jurisdiction to determine and award compensation to or on behalf of uncompensated tort victims. The requirement that the uncompensated tort victim has obtained a final judgment may be waived by the division based upon the tort-feasor's bankruptcy, inability to identify the tort-feasor or inability to obtain service of process on the tort-feasor after making a good faith effort to do so or the claim against tort-feasor has been settled for the insurance policy limits available to cover the liability of such tort-feasor and such policy limits are inadequate in light of the injury suffered by the tort victim. The division is not required to award compensation, nor is it required to award the full amount claimed. The division shall base its award of compensation upon independent verification obtained during its investigation. In no case shall the amount paid to the individual exceed the lesser of either the net award granted by the court or jury, or the amount remaining in the tort victims' compensation fund, provided, however, that no award shall exceed three hundred thousand dollars.

3. Claims shall be made by filing an application for compensation with the division. The division shall furnish an application form which shall include:

(1) The name and address of the uncompensated tort victim;

(2) If the claimant is not the uncompensated tort victim, the name and address of the claimant and relationship to the victim, the name and address of any dependents of the victim, and the extent to which each is so dependent;

(3) The date and nature of the tort on which the application for compensation is based;

(4) The date and court in which a judgment was rendered against the tort-feasor, including the judgment amount specifying medical costs, if available. If no final judgment was obtained and the claimant is requesting a waiver pursuant to subsection 2 of this section, the application shall include a statement establishing the basis for a waiver;

(5) The nature and extent of the injuries sustained by the victim, the names and addresses of those giving medical and hospital treatment to the victim and whether death resulted;

(6) The loss to the claimant or a dependent resulting from the injury or death;

(7) The amount of benefits, payments or awards, if any, payable from any source that the claimant or dependent has received or for which the claimant or dependent is eligible as a result of the injury or death;

(8) Releases by the claimant authorizing any reports, documents and other information relating to the matters specified pursuant to this section to be obtained by the division; and

(9) Any other information as the division determines is necessary.

4. In addition to the application, the division may require that the claimant submit materials substantiating the facts stated in the application.

5. If the division finds that an application does not contain the required information or that the facts stated therein have not been substantiated, it shall notify the claimant in writing of the specific additional items or information or materials required and that the claimant has thirty days from the date of mailing in which to furnish those items to the division. Unless a claimant requests and is granted an extension of time by the division, the division may reject, without prejudice to refiling of another application for the same matter, the claim of the claimant for failure to file the additional information or materials within the specified time. Extensions of time to file such additional information shall be freely granted.

6. The claimant may file an amended application or additional substantiating materials to correct inadvertent errors or omissions at any time before the division has completed its consideration of the original application.

7. Any state or local agency, including a prosecuting attorney or law enforcement agency, shall make available without cost to the fund, all reports, files and other appropriate information that the division requests in order to make a determination that a claimant is eligible for an award pursuant to sections 537.675 to 537.693.

8. Any notice required pursuant to sections 537.675 to 537.693, with the exception of the lien notice required by subsection 3 of section 537.675, shall be sent by first class mail, postage prepaid, to the party's last known address or to the last known address of the party's attorney or other legal representative.

(L. 2001 H.B. 107)

Eligibility requirements--waiver of certain requirements,when--incarcerated victim, procedure.

537.681. 1. The following persons shall be eligible for compensation pursuant to sections 537.675 to 537.693:

(1) An uncompensated tort victim; and

(2) In the case of the death of the uncompensated tort victim as a direct result of the tort:

(a) The class of persons identified in subsection 1 of section 537.080; and

(b) Any relative of the uncompensated tort victim who legally assumes the obligation for, or who has incurred medical or burial expenses as a direct result of the tort at issue.

2. An uncompensated tort victim that is found personally liable on a cross-complaint of tort, or found to have been contributorily or comparatively negligent, shall only be eligible to receive compensation to the extent of the favorable net amount awarded by the judge or jury. No uncompensated tort victim or other eligible claimant shall be denied compensation solely because such person is a relative of the tort-feasor or was living with the tort-feasor as a family or household member at the time of the injury or death. The division, however, may award compensation to a victim or other eligible claimant only if the division can reasonably determine that the tort-feasor will receive no substantial economic benefit or unjust enrichment from the compensation.

3. The division may waive the requirements of paragraph (e) of subdivision (5) of subsection 1 of section 537.675 if it determines that the interest of justice would be served by doing so.

4. In the case of an uncompensated tort victim or other eligible claimant who is incarcerated as a result of a conviction of a crime not related to the incident which is the basis for the claimant's application:

(1) The division shall suspend all proceedings and payments until such time as the uncompensated tort victim or other eligible claimant is released from incarceration;

(2) The division shall notify the claimant at the time the proceedings are suspended of the right to reactivate the claim within six months of his or her release from incarceration;

(3) The uncompensated tort victim or other eligible claimant may file an application to request that the case be reactivated not later than six months after the date he or she is released from incarceration. Failure to file such request within the six-month period shall serve as a bar to any recovery.

(L. 2001 H.B. 107)

Filing of a claim, determining compensation, procedure--payment ofclaims.

537.684. 1. A claim for compensation may be filed by a person eligible for compensation or, if the person is an incapacitated or disabled person, or a minor, by the person's spouse, parent, conservator or guardian.

2. A claim shall be filed not later than two years after the judgment upon which it is based becomes final and all appeals are final. If there is no judgment, claims must be filed within time limits prescribed pursuant to section 516.120, except for cases resulting in death, in which case claims must be filed within time limits prescribed pursuant to section 537.100.

3. Each claim shall be filed in person or by mail. The division shall investigate such claim prior to the opening of formal proceedings. The director of the division shall assign an administrative law judge, associate administrative law judge or legal advisor within the division to hear any claim for compensation filed. The claimant shall be notified of the date and time of any hearing on the claim. In determining the amount of compensation for which a claimant is eligible, the division shall:

(1) Consider the facts stated on the application filed pursuant to section 537.678;

(2) Obtain a copy of the final judgment, if any, from the appropriate court;

(3) Determine the amount of the loss to the claimant, or the victim's survivors or dependents; and

(4) If there is no final judgment, determine the degree or extent to which the victim's acts or conduct provoked, incited or contributed to the injuries or death of the victim.

4. The claimant may present evidence and testimony on his or her own behalf or may retain counsel.

5. Prior to any hearing, the person filing a claim shall submit reports, if available, from all hospitals, physicians or surgeons who treated or examined the victim for the injury for which compensation is sought. If, in the opinion of the division, an examination of the injured victim or a report on the cause of death of the victim would be of material aid, the division may appoint a duly qualified, impartial physician to make an examination and report. A finding of the judge or jury in the underlying case shall be considered as evidence.

6. Each and every payment shall be exempt from attachment, garnishment or any other remedy available to creditors for the collection of a debt, provided however, this section shall not in any way affect the right of any attorney who represents or represented any claimant to collect any fee or expenses to which he or she is entitled.

7. Payments of compensation shall not be made directly to any person legally incompetent to receive them but shall be made to the parent, guardian or conservator for the benefit of such minor, disabled or incapacitated person.

8. For payment of all claims from the fund, the division shall determine the aggregate amount of all awards made on those claims filed during an annual claims period. Such determination shall be made on or before the thirtieth day of June in the next succeeding year. If the aggregate value of the awards does not exceed the total amount of money in the fund, then the awards shall be paid in full on or before the thirtieth day of September in the next succeeding year. If the aggregate value of the awards does exceed the total amount of money in the fund, then the awards shall be paid on a pro rata basis on or before the thirtieth day of September in the next succeeding year.

9. If there are no funds available, then no claim shall be paid until funds have accumulated in the tort victims' compensation fund and have been appropriated to the division for payment to uncompensated tort victims. When sufficient funds become available for payment of claims of uncompensated tort victims, awards that have been determined but have not been paid shall be paid in chronological order with the oldest paid first, based upon the date on which the application was filed with the division. Any award pursuant to this subsection that cannot be paid due to a lack of funds appropriated for payment of claims of uncompensated tort victims shall not constitute a claim against the state.

10. In the event there are no funds available for payment of claims, then the division may suspend all action related to valuing claims and granting awards until such time as funds in excess of one hundred thousand dollars have accumulated in the tort victims' compensation fund, at which time the division shall resume its claim processing duties.

(L. 2001 H.B. 107, A.L. 2010 H.B. 1965)

Medical records submitted, when--violation, penalty.

537.687. 1. Upon request by the division for verification of injuries of victims, a medical provider shall submit medical records and other information requested by the division. Any costs to the claimant for obtaining and providing such information may be submitted as part of the claim.

2. Failure to submit the information as required by this section shall be an infraction.

(L. 2001 H.B. 107)

Petition for review of a decision by the division filed withcommission--judicial review permitted, when.

537.690. 1. Any of the parties to a decision of the division on a claim heard under the provisions of sections 537.675 to 537.693 may, within thirty days following the date of notification or mailing of such decision, file a petition with the labor and industrial relations commission to have the decision reviewed by the commission. The commission may allow or deny a petition for review. If a petition is allowed, the commission may affirm, reverse or set aside the decision of the division on the basis of the evidence previously submitted in such case or may take additional evidence or may remand the matter to the division with directions. The commission shall promptly notify the parties of its decision and the reasons therefor.

2. Any petition for review filed pursuant to subsection 1 of this section shall be deemed to be filed as of the date endorsed by the United States Postal Service on the envelope or container in which such petition is received.

3. Any party who is aggrieved by a final decision of the commission entered pursuant to the provisions of subsections 1 and 2 of this section may seek judicial review thereof by appealing, within twenty days of a final decision to the appellate court having jurisdiction in the area where the appellant resides. In such proceedings the attorney general, on behalf of the tort victims' compensation fund, shall defend the decision of the commission. The commission shall not be a party in such actions.

(L. 2001 H.B. 107)

Right of subrogation, payment of a claim--division lien on anycompensation received by claimant--rulemaking authority.

537.693. 1. Payment of any compensation pursuant to sections 537.675 to 537.693 shall vest in the state of Missouri a right of subrogation to the extent of such compensation paid, to any right or right of action of the claimant to recover payments with respect to which the compensation has been paid and to enforce the underlying judgment against the tort-feasor. The attorney general may enforce the subrogation interest, and may file suit to enforce that right of subrogation.

2. The division shall have a lien on any compensation received by the claimant from the tort-feasor or the tort-feasor's agent after payment by the division to the claimant, in addition to compensation received pursuant to the provisions of sections 537.675 to 537.693, for injuries or death resulting from the incident upon which the claim is based. The claimant shall retain, as trustee for the division, so much of the recovered funds as necessary to reimburse the Missouri tort victims' compensation fund to the extent that compensation was paid to the claimant from that fund.

3. If a claimant initiates any legal proceeding to recover restitution or damages or enforce the underlying judgment related to the tort upon which the claim is based, or if the claimant enters into negotiations to receive any proceeds in settlement or a claim for restitution or damages related to the tort, the claimant shall give the division written notice within fifteen days of the filing of the action or entering into negotiations. The division may intervene in the proceeding of a claimant to enforce its subrogation interest. If a claimant fails to give such written notice to the division within the stated time period or prior to any attempt by claimant to reach a negotiated settlement of claims for recovery of damages related to the tort upon which the claim is based, the division's right of subrogation to receive or recover funds from claimant, to the extent that compensation was awarded by the division, shall not be reduced in any amount or percentage by the costs incurred by claimant attributable to such legal proceedings or settlement, including, but not limited to, attorney's fees, investigative costs or court costs; however, if the claimant provides written notice to the division as required in this section then the subrogation interest of the division shall be reduced by a percentage equal to the percentage that the attorney's fees and expenses incurred by the claimant bears to the total recovery.

4. Whenever the division shall deem it necessary to protect, maintain or enforce the division's right to subrogation or to exercise any of its powers to carry out any of its duties or responsibilities, the attorney general may initiate legal proceedings or intervene in legal proceedings as the division's legal representative.

5. The division is hereby granted authority to adopt rules and regulations, consistent with the provisions of sections 537.678 to 537.693, which rules and regulations may govern application for and distribution of those moneys appropriated to the division from the tort victims' compensation fund.

6. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in subsection 5 of this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2001, shall be invalid and void.

(L. 2001 H.B. 107)

Public entity risk management fund established--definitions--who mayparticipate.

537.700. 1. There is hereby created the "Missouri Public Entity Risk Management Fund", which shall be a body corporate and politic. The board of trustees of this fund shall have the powers and duties specified in sections 537.700 to 537.755 and such other powers as may be necessary or proper to enable it, its officers, employees and agents to carry out fully and effectively all the purposes of sections 537.700 to 537.755.

2. Unless otherwise clearly indicated by the context, the following words and terms as used in sections 537.700 to 537.755 mean:

(1) "Board", the board of trustees of the Missouri public entity risk management fund;

(2) "Fund", the Missouri public entity risk management fund established by subsection 1 of this section;

(3) "Public entity", any city, county, township, village, town, municipal corporation, school district, special purpose or taxing district, or any other local public body created by the general assembly.

3. Any public entity may participate in the Missouri public entity risk management fund and use public funds to pay any assessment made in conjunction with the fund.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Effect of participation in fund--use of funds, limits--board oftrustees, duties--staff--board to be notified of claims, when--boardmay contract with independent insurance agents.

537.705. 1. All public entities in Missouri shall have the option of participating in the fund and making annual contributions to the fund in the amount determined by the board in accordance with the provisions of section 379.470 relating to rates established by insurers. Participation in the fund has the same effect as purchase of insurance by the public entity, as otherwise provided by law, and shall have the same effect as a self-insurance plan adopted by the governing body of any political subdivision of the state. Moneys in the fund shall be available for:

(1) The payment and settlement of all claims for which coverage has been obtained by any public entity in accordance with coverages offered by the board;

(2) The payment and settlement of tort claims against any officer or employee of a participating public entity for which coverage has been obtained by any public entity in accordance with coverages offered by the board when the claim is upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the participating public entity;

(3) Attorney's fees and expenses incurred in the settlement and defense of such entities and persons for claims specified in this subsection.

2. No amount in excess of the amount specified by section 537.756 shall be paid from the fund for the payment and settlement of claims arising out of any single occurrence.

3. The board of trustees of the fund will negotiate the settlement of and provide the defense of any claim for which coverage has been obtained by any public entity in accordance with coverages offered by the board. The board of trustees of the fund shall make the final determination on the settlement of any claim, or any portion of any claim, which requires payment from the fund. For any year in which any public entity does not make a yearly contribution to the fund, the board of trustees of the fund shall not be responsible, in any way, for negotiating the settlement of any claim arising from an occurrence in that year, providing any defense of any claim arising from an occurrence in that year, making any payment on any claim arising from an occurrence in that year, or making any payment on any judgment on any claim arising from an occurrence in that year. Any public entity which discontinues its participation in the fund may not resume participation for a period of three years from the date it discontinues participation.

4. All staff for the Missouri public entity risk management fund shall be provided by the office of administration except as otherwise specifically determined by the board. The fund shall reimburse the office of administration for all costs of providing staff required by this subsection. Such reimbursement shall be made on an annual basis, pursuant to contract negotiated between the fund and the office of administration. As established in section 537.700, the Missouri public entity risk management fund is a body corporate and politic, and the state of Missouri shall not be liable in any way with respect to claims made against the fund or against entities or individuals covered by the fund, nor with respect to any expense of operation of the fund. Money in the fund is not state money nor is it money collected or received by the state.

5. Each participating public entity shall notify the board of trustees of the fund within seven working days of the time notice is received that a claim from an occurrence has been made against the entity, or one of its officers or employees. The public entity shall supply information to the board of trustees of the fund concerning any claim upon request. It shall also notify the board of trustees of the fund upon the closing of any claim.

6. The board may contract with independent insurance agents, authorizing such agents to accept contributions to the fund from public entities on behalf of the board upon such terms and conditions as the board deems necessary, and may provide a reasonable method of compensating such agents. Such compensation shall not be additional to the contribution to the fund.

(L. 1986 H.B. 1435 & 1461, A.L. 1993 S.B. 88, A.L. 1999 S.B. 295 & 46)

(2003) Section does not violate payment of punitive damages but does not prohibit such coverage. Naucke v. Missouri Public Entity Risk Management Fund, 95 S.W.3d 166 (Mo.App.W.D.).

Board of trustees established--members, appointment, qualifications,terms, liability limited.

537.710. 1. There is hereby established a "Board of Trustees" of the Missouri public entity risk management fund which shall consist of the attorney general, the commissioner of administration and four members, appointed by the governor with the advice and consent of the senate, who are officers or employees of those public entities participating in the fund. No more than two members appointed by the governor shall be of the same political party. The members appointed by the governor shall serve four-year terms, except that the original appointees shall be appointed for the following terms: One for one year, one for two years, one for three years, and one for four years. Any vacancies occurring on the board shall be filled in the same manner. In appointing the initial board of trustees the governor may anticipate which public entities will participate in the fund, and the appointees may serve the terms designated herein, unless they sooner resign or are removed in accordance with law.

2. No trustee shall be liable personally in any way with respect to claims made against the fund or against entities or individuals covered by the fund.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Board of trustees--officers.

537.715. 1. The board shall elect one of their members as chairman. He shall preside over meetings of the board and perform such other duties as shall be required by action of the board.

2. The chairman shall appoint another board member as vice chairman, and the vice chairman shall perform the duties of the chairman in the absence of the latter or upon his inability or refusal to act.

3. The board shall appoint a secretary who shall have charge of the offices and records of the fund, subject to the direction of the board.

4. Any summons or writ issued by the courts of the state shall be served upon the chairman, or, in his absence, on the vice chairman, or upon a registered agent which the board shall designate.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Board, meetings--quorum--expenses.

537.720. 1. The board shall meet in Jefferson City, Missouri, upon the written call of the chairman or by the agreement of any three members of the board. Notice of the meeting shall be delivered to all other trustees in person or by depositing notice in a United States post office in a properly stamped and addressed envelope not less than six days prior to the date fixed for the meeting. The board may meet at any time by unanimous mutual consent. There shall be at least one meeting in each quarter.

2. Four trustees shall constitute a quorum for the transaction of business, and any official action of the board shall be based on a majority vote of the trustees present.

3. The trustees shall serve without compensation but shall receive from the fund their actual and necessary expenses incurred in the performance of their duties for the board.

4. Duties performed for the fund by any member of the board who is an employee of a public entity shall be considered duties in connection with the regular employment of such individual, and he shall suffer no loss in regular compensation by reason of the performance of such duties.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Board--records--reports--principal office--seal.

537.725. 1. The board shall keep a complete record of all its proceedings.

2. A statement covering the operations of the fund for the year, including income and disbursements, and of the financial condition of the fund at the end of the year, showing the valuation and appraisal of its assets and liabilities, as of July first, shall each year be delivered to the governor and be made readily available to public entities.

3. The principal office of the fund shall be in Jefferson City, Missouri. The fund shall have a seal inscribed "Missouri Public Entity Risk Management Fund", which shall be in the custody of its secretary. The courts of this state shall take judicial notice of the seal. All copies of records, books, and written instruments which are kept in the office of the fund and are certified by the secretary under the seal shall be proved or admitted in any court or proceeding as provided in section 109.130.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Board--duties--rulemaking authority--subpoena power--prohibitedactivities.

537.730. 1. The general administration of, and responsibility for, the proper operation of the fund, including all decisions relating to payments from the fund, are hereby vested in the board of trustees.

2. The board shall determine and prescribe all rules, regulations, coverages to be offered, forms and rates to carry out the purposes of sections 537.700 to 537.755.

3. The board shall have the power to subpoena witnesses or obtain the production of records when necessary for the performance of its duties.

4. Subject to the provisions of the constitution and sections 537.700 to 537.755, the board shall have exclusive jurisdiction and control over the funds and property of the fund.

5. No trustee or staff member of the fund shall receive any gain or profit from any moneys or transactions of the fund.

6. Any trustee or staff member accepting any gratuity or compensation for the purpose of influencing his action with respect to the investment of the funds of the system or in the operations of the fund shall forfeit his office and in addition shall be subject to the penalties prescribed in section 576.020.

7. The board shall have the authority to use moneys from the fund to purchase one or more policies of insurance or reinsurance to cover the liabilities of participating public entities which are covered by the fund.

8. If such insurance can be procured, the board shall have the authority to procure insurance covering participating public entities and their officers and employees for amounts in excess of the amount specified by section 537.756 per occurrence for liabilities covered by the fund. The costs of such insurance shall be considered in determining the contribution of each public entity.

9. The board shall have the authority to use moneys from the fund to assist participating entities in assessing and reducing the risk of liabilities which may be covered by the fund.

(L. 1986 H.B. 1435 & 1461, A.L. 1993 S.B. 88)

Fund account, how maintained.

537.735. 1. The board shall set up and maintain a Missouri public entity risk management fund account in which shall be placed all contributions, premiums, and income from all sources. All property, money, funds, investments, and rights which shall belong to, or be available for expenditure or use by, the fund shall be dedicated to and held in trust for the purposes set out in sections 537.700 to 537.755 and no other. The board shall have power, in the name of and on behalf of the fund, to purchase, acquire, hold, invest, lend, lease, sell, assign, transfer, and dispose of all property, rights, and securities, and enter into written contracts, all as may be necessary or proper to carry out the purposes of section 537.700 or 537.755.

2. All moneys received by or belonging to the fund shall be paid to the secretary and deposited by him to the credit of the fund in one or more banks or trust companies. No such money shall be deposited in or be retained by any bank and trust company which does not have on deposit with the board at the time the kind and value of collateral required by section 30.270 for depositories of the state treasurer. The secretary shall be responsible for all funds, securities, and property belonging to the fund, and shall give such corporate surety bond for the faithful handling of the same as the board shall require.

3. So far as practicable, the funds and property of the fund shall be kept safely invested so as to earn a reasonable return. The board may invest the funds of the fund as permitted by the laws of Missouri relating to the investment of the capital, reserve, and surplus funds of casualty insurance companies organized under the laws of Missouri.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Insufficient contributions, assessment, abatement,deferral--retroactive application.

537.740. 1. If contributions to the fund do not produce sufficient funds to pay any claims which may be due, the board shall assess and each member, including any member who has withdrawn but was a member in the year in which the assessment is required, shall pay such additional amounts which are each member's proportionate share of total claims allowed and due. The board may abate or defer any part of the additional assessment of a member, if, in the opinion of the board, payment of the additional assessment would impair the ability of the member to fulfill its contractual obligations. The provisions of this subsection shall apply retroactively to the creation of the Missouri public entity risk management fund.

2. The board, in order to carry out the purposes for which the fund is established, may select and employ, or contract with, persons experienced in insurance underwriting, accounting, the servicing of claims, and rate making, who shall serve at the board's pleasure, as technical advisors in establishing the annual contribution, or may call upon the director of the department of insurance, financial institutions and professional registration for such services.

(L. 1986 H.B. 1435 & 1461, A.L. 1993 S.B. 88, A.L. 1999 S.B. 295 & 46)

Construction of provisions.

537.745. 1. Nothing in sections 537.700 to 537.755, shall be construed to broaden or restrict the liability of the public entities participating in the fund beyond the provisions of sections 537.600 to 537.610, nor to abolish or waive any defense at law which might otherwise be available to any public entity or its officers and employees.

2. All persons and entities protected by the fund shall cooperate with those persons responsible for conducting any investigation and preparing any defense under the provisions of sections 537.700 to 537.755, by assisting such persons in all respects, including the making of settlements, the securing and giving of evidence, and the attending and obtaining witnesses to attend hearings and trials.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Exhaustion of fund, claims to be prorated.

537.750. 1. If the fund will be exhausted by the payment of all judgments and claims allowed during a particular fiscal year, amounts paid to each claimant or person obtaining a judgment shall be prorated, with each person receiving an amount equal to the percentage his own payment bears to the total of claims and judgments outstanding and payable from the fund. Any amounts due and unpaid as a result of such proration shall be paid in the following fiscal year.

2. If, at the end of any fiscal year, the fund has a balance exceeding projected needs, and adequate reserves, the board may in its discretion refund on a pro rata basis to all participating public entities an amount based on the contributions of the public entity for the immediately preceding year.

(L. 1986 H.B. 1435 & 1461)

Effective 6-20-86

Fund money not available for certain purposes, exception.

537.755. 1. Except as provided in subsection 3 of this section, moneys in the Missouri public entity risk management fund shall not be available to pay the following:

(1) Claims made under chapter 287;

(2) Fines or penalties threatened or imposed for violation of any civil or criminal statute, administrative regulation or county or municipal ordinance;

(3) Attorney's fees and expenses incurred in the defense of charges that criminal statutes or county or municipal ordinances were violated;

(4) Claims against any participating public entity or officer or employee of a participating public entity which were brought by or rendered in favor of any participating public entity or officer or employee of a participating public entity acting in an official capacity;

(5) Claims against those who are independent contractors with a participating public entity, its officers or employees;

(6) Claims against participating public entities, its officers or employees who fail to cooperate with the persons conducting any investigation and preparing any defense as required by section 537.745.

2. No payment shall be made from the fund or any policy of insurance procured by the fund unless and until the benefits provided to pay the claim by any other policy of liability insurance have been exhausted.

3. The fund may be available to pay claims on behalf of public entities to whom or to which a public entity participating in the Missouri public entity risk management fund is obligated by virtue of a written contract to provide coverage such as is afforded in the contract, consistent with rules promulgated by the board of trustees of the Missouri public entity risk management fund.

(L. 1986 H.B. 1435 & 1461, A.L. 1988 S.B. 532)

Effective 6-2-88

Maximum amount payable from fund--how calculated.

537.756. 1. The maximum amount which may be paid from the fund, as defined in section 537.700, for the payment and settlement of claims arising out of any single occurrence, is two million dollars.

2. The limitation on awards for liability provided for in this section shall be increased or decreased on an annual basis effective January first of each year in accordance with the Implicit Price Deflator for Personal Consumption Expenditures as published by the Bureau of Economic Analysis of the United States Department of Commerce. The current value of the limitation shall be calculated by the director of the department of insurance, financial institutions and professional registration, who shall furnish that value to the secretary of state, who shall publish such value in the Missouri Register as soon after each January first as practicable, but it shall otherwise be exempt from the provisions of section 536.021.

(L. 1989 H.B. 161 § 1, A.L. 1993 S.B. 88, A.L. 1999 S.B. 295 & 46)

CROSS REFERENCE:

Liability of state and public entities, increases to be effective on certain causes of actions, when, 537.615

Products liability claim defined.

537.760. As used in sections 537.760 to 537.765, the term "products liability claim" means a claim or portion of a claim in which the plaintiff seeks relief in the form of damages on a theory that the defendant is strictly liable for such damages because:

(1) The defendant, wherever situated in the chain of commerce, transferred a product in the course of his business; and

(2) The product was used in a manner reasonably anticipated; and

(3) Either or both of the following:

(a) The product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold; or

(b) The product was then unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics, and the plaintiff was damaged as a direct result of the product being sold without an adequate warning.

(L. 1987 H.B. 700 § 33)

Effective 7-1-87

Motion to dismiss, defendant whose only liability is as seller instream of commerce requirements, procedure--order of dismissal to beinterlocutory.

537.762. 1. A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section.

2. This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff's claim.

3. A defendant may move for dismissal under this section within the time for filing an answer or other responsive pleading unless permitted by the court at a later time for good cause shown. The motion shall be accompanied by an affidavit which shall be made under oath and shall state that the defendant is aware of no facts or circumstances upon which a verdict might be reached against him, other than his status as a seller in the stream of commerce.

4. The parties shall have sixty days in which to conduct discovery on the issues raised in the motion and affidavit. The court for good cause shown, may extend the time for discovery, and may enter a protective order pursuant to the rules of civil procedure regarding the scope of discovery on other issues.

5. Any party may move for a hearing on a motion to dismiss under this section. If the requirements of subsections 2 and 3 of this section are met, and no party comes forward at such a hearing with evidence of facts which would render the defendant seeking dismissal under this section liable on some basis other than his status as a seller in the stream of commerce, the court shall dismiss without prejudice the claim as to that defendant.

6. No order of dismissal under this section shall operate to divest a court of venue or jurisdiction otherwise proper at the time the action was commenced. A defendant dismissed pursuant to this section shall be considered to remain a party to such action only for such purposes.

7. An order of dismissal under this section shall be interlocutory until final disposition of plaintiff's claim by settlement or judgment and may be set aside for good cause shown at anytime prior to such disposition.

(L. 1987 H.B. 700 § 34)

Effective 7-1-87

State of the art, defined--affirmative defense in cases of strictliability for failure to warn--burden of proof on party assertingdefense--action for negligence, when.

537.764. 1. As used in this section, "state of the art" means that the dangerous nature of the product was not known and could not reasonably be discovered at the time the product was placed into the stream of commerce.

2. The state of the art shall be a complete defense and relevant evidence only in an action based upon strict liability for failure to warn of the dangerous condition of a product. This defense shall be pleaded as an affirmative defense and the party asserting it shall have the burden of proof.

3. Nothing in this section shall be construed as limiting the rights of an injured party to maintain an action for negligence whenever such a cause of action would otherwise exist.

4. This section shall not be construed to permit or prohibit evidence of feasibility in products liability claims.

(L. 1987 H.B. 700 § 35)

Effective 7-1-87

Contributory fault as complete bar to plaintiff's recoveryabolished--doctrine of comparative fault to apply--fault ofplaintiff an affirmative defense to diminish damages--faultdefined.

537.765. 1. Contributory fault, as a complete bar to plaintiff's recovery in a products liability claim, is abolished. The doctrine of pure comparative fault shall apply to products liability claims as provided in this section.

2. Defendant may plead and prove the fault of the plaintiff as an affirmative defense. Any fault chargeable to the plaintiff shall diminish proportionately the amount awarded as compensatory damages but shall not bar recovery.

3. For purposes of this section, "fault" is limited to:

(1) The failure to use the product as reasonably anticipated by the manufacturer;

(2) Use of the product for a purpose not intended by the manufacturer;

(3) Use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger;

(4) Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger;

(5) The failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or

(6) The failure to mitigate damages.

(L. 1987 H.B. 700 § 36)

Effective 7-1-87

Citation of law--definitions.

537.850. 1. Sections 537.850 to 537.859 shall be known and may be cited as the "Agritourism Promotion Act".

2. As used in sections 537.850 to 537.859, the following terms shall mean:

(1) "Agritourism activity", any activity which allows members of the general public for recreational, entertainment, or educational purposes to view or enjoy rural activities, including but not limited to farming activities, ranching activities, or historic, cultural, or natural attractions. An activity may be an agritourism activity whether or not the participant pays to participate in the activity. An activity is not an agritourism activity if the participant is paid to participate in the activity;

(2) "Department", the state department of agriculture;

(3) "Director", the director of the department of agriculture;

(4) "Inherent risks of a registered agritourism activity", those dangers or conditions which are an integral part of such agritourism activity, including but not limited to certain hazards such as surface and subsurface conditions; natural conditions of land, vegetation, and waters; the behavior of wild or domestic animals; and ordinary dangers of structures or equipment ordinarily used in farming or ranching operations. Inherent risks of a registered agritourism activity also includes the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to follow instructions given by the registered agritourism operator or failing to exercise reasonable caution while engaging in the registered agritourism activity;

(5) "Participant", any person who engages in a registered agritourism activity;

(6) "Registered agritourism activity", any agritourism activity that is registered with the director of the department of agriculture as an AgriMissouri member under section 261.230, and any rules promulgated thereunder;

(7) "Registered agritourism location", a specific parcel of land which is registered with the director of the department of agriculture under section 261.230, and any rules promulgated thereunder, and where a registered agritourism operator engages in registered agritourism activities;

(8) "Registered agritourism operator", any person who is engaged in the business of providing one or more agritourism activities and is registered with the director of the department of agriculture as an AgriMissouri member under section 261.230, and any rules promulgated thereunder.

(L. 2012 S.B. 631)

Signage required--contract warning notice and language,contents--written description of activity required, when.

537.856. 1. At every registered agritourism location, the registered agritourism operator shall post and maintain signage which contains the warning notice specified in subsection 3 of this section. The requirements of this section shall be deemed satisfied if such signage is placed in a clearly visible location at or near the registered agritourism location. The warning notice shall appear on the sign in black letters, with each letter to be at least one inch in height.

2. Every written contract entered into by a registered agritourism operator for the providing of a registered agritourism activity shall contain in clearly readable print the warning notice and language specified in subsection 3 of this section.

3. The required signage under this section shall contain the following warning notice:

"WARNING: Under Missouri law, there is no liability for an injury or death of a participant in a registered agritourism activity conducted at this registered agritourism location if such injury or death results from the inherent risks of such agritourism activity. Inherent risks of agritourism activities include, but are not limited to, the potential of you as a participant to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this registered agritourism activity.".

4. Upon request, the registered agritourism operator shall provide to any participant a written description of the registered agritourism activity, as set forth in the registration under subdivision (6) of subsection 2 of section 537.850 for which sections 537.850 to 537.859 limit the registered agritourism operator's liability at the registered agritourism location.

(L. 2012 S.B. 631)

Immunity from liability, when--affirmative defense.

537.859. 1. Except as provided in subsection 2 of this section, a registered agritourism operator is not liable for injury to or death of a participant resulting from the inherent risks of agritourism activities so long as the warning contained in section 537.856 is posted as required and, except as provided in subsection 2 of this section, no participant or participant's representative shall maintain an action against or recover from a registered agritourism operator for injury, loss, damage, or death of the participant resulting exclusively from any of the inherent risks of agritourism activities.

2. Nothing in sections 537.850 to 537.859 shall prevent or limit the liability of a registered agritourism operator if the registered agritourism operator:

(1) Injures the participant by willful or wanton conduct;

(2) Has actual knowledge or should have known of a dangerous condition in the facilities or equipment used in the registered agritourism activity and does not make such dangerous condition known to a participant and such dangerous condition causes the participant to sustain injuries; or

(3) Fails to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

3. In any action for damages for personal injury, death, or property damage arising from the operation of a registered tourism activity in which an owner or operator is named as a defendant, it shall be an affirmative defense to that liability that:

(1) The injured person assumed the risk;

(2) The injured person deliberately disregarded conspicuously posted signs, verbal instructions, or other warnings regarding safety measures during the activity; or

(3) Any equipment, animals, or appliance used by the injured person during the activity was* used in a manner or for a purpose other than that for which a reasonable person should have known they were intended.

(L. 2012 S.B. 631)

*Word "were" appears in original rolls of S.B. 631, 2012.


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