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
(1969) The charitable immunity doctrine is abolished and nongovernmental charitable institutions are liable for their own negligence and the negligence of their agents and employees acting within the scope of their employment. Abernathy v. Sisters of St. Mary's (Mo.), 446 S.W.2d 599.
(1969) Churches are liable for their own negligence and the negligence of their agents and employees acting within the scope of their employment. Garnier v. St. Andrew Presbyterian Church of St. Louis, Mo. (Mo.), 446 S.W.2d 607.
(1971) The doctrine of governmental immunity does not violate the constitutional rights of an injured party by depriving him of rights or property without due process. Wood v. County of Jackson (Mo.), 463 S.W.2d 834.
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
(1971) Where parents of deceased child were not made defendants in plaintiff's suit against child's administrator, they could not bring themselves into that action as counter-claimants for wrongful death. State ex rel. Saupe v. Swink (A.), 475 S.W.2d 466.
(1975) Wrongful death action of husband for wife's death abated on his death sixteen days later and did not pass to his personal representative. Pedroli v. Missouri Pacific Railroad (A.), 524 S.W.2d 882.
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, RSMo, 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, RSMo.
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
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
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, RSMo, or a dentist licensed under the provisions of chapter 332, RSMo, or a podiatrist licensed under the provisions of chapter 330, RSMo, or an optometrist licensed under the provisions of chapter 336, RSMo, or a pharmacist licensed under the provisions of chapter 338, RSMo, or a chiropractor licensed under the provisions of chapter 331, RSMo, or a psychologist licensed under the provisions of chapter 337, RSMo, or a nurse licensed under the provisions of chapter 335, RSMo, or a social worker licensed under the provisions of chapter 337, RSMo, or a professional counselor licensed under the provisions of chapter 337, RSMo, or a mental health professional as defined in section 632.005, RSMo, 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, RSMo;
(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, RSMo, 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, RSMo;
(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, RSMo 538.305
(1984) No peer review privilege of confidentiality exists for statements or documents since such privilege is separate and distinct from the statutory immunity from civil liability granted to medical personnel participating in peer review. State ex rel. Chandra v. Sprinkle (Mo. banc), 678 S.W.2d 804.
(1986) The proceedings, findings, deliberations, reports and minutes of peer review committees are not discoverable. State ex rel. Faith Hospital v. Enright (Mo. banc), 706 S.W.2d 852.
(2006) Subsection (4) of section prohibiting disclosure by healthcare facility of medical peer review committee reports is preempted by Protection and Advocacy for Mentally Ill Individuals Act. Missouri Protection & Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir.).
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, RSMo, 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, RSMo, 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, RSMo, or qualified counselor, as defined in section 631.005, RSMo, 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)
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, RSMo 211.185
Defacing state buildings, liability, RSMo 8.150
Parents liable for minors defacing state capitol, RSMo 8.150
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*, RSMo, or section 568.020, RSMo;
(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, RSMo 556.037
Statute of limitation in action for damages for sexual contact with person within third degree of consanguinity or affinity, RSMo 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).
537.047. 1. Any person who, while a child or minor as defined by section 573.010, RSMo, was a victim of a violation of sections 573.023, 573.025, 573.035, or 573.037, RSMo, 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)
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
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, RSMo, 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)(1985) There is no common-law "dramshop" liability on the part of a social host who serves alcohol in his home to an intoxicated guest who later injures a third party. Harriman v. Smith (A.), 697 S.W.2d 219.
(1987) Licensed vendors of liquor not to be consumed on the premises are "dram shop keepers" and are protected from liability according to the terms of this section. Ernst v. Dowdy, 739 S.W.2d 571 (Mo.App.).
(1987) Three men who planned a party at the home of one of the men's parents were not liable for the injuries of a woman who was involved in a motor vehicle accident while a passenger in a vehicle driven by a man who was intoxicated and had become so at the party given by the three men. Childress v. Sams, 736 S.W.2d 48 (Mo.banc).
(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).
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
(1974) When joint tort-feasors are each chargeable with active or affirmative negligence, neither is entitled to indemnity from the other; however, one may be entitled to contribution from the other. Lewis v. Amchem Products, Inc. (A.), 510 S.W.2d 46.
(1994) Statute does not require court to ignore plain, clear divestiture of all claims in general release, however, a specific and clear reservation is no longer required. Plaintiff's failure to clearly reserve a specific claim in release does not necessarily render the claim barred. Court must consider the whole instrument where language limits scope of release to claims in first cause of action. Allison V. Flexway Trucking, Inc. 28 F.3d 64 (8th Cir.).
(1996) Statute does not prohibit a general release. Meyer v. General Motors Corp., 937 F.Supp. 861 (E.D. Mo.)
(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.).
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)(1974) This section does not deprive insuror of right to be heard on question of coverage or collusion and does not discriminate against insurors. Butters v. City of Independence (Mo.), 513 S.W.2d 418.
(1975) Guardian ad litem who sat silent during alleged improper argument and who made an admission of liability held not to have violated his duty to ward and to have owed no duty to insuror after having proceeded under this section. United States Fidelity & Guaranty Co. v. Safeco Ins. Co. of Am. (Mo.), 522 S.W.2d 809.
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, RSMo 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.).
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
(1996) Additur is an "authorized after-trial" motion. Massman Construction Company v. Missouri Highway & Transportation Commission, 914 S.W.2d 801 (Mo.banc).
537.069. The provisions of sections 260.552, RSMo, 408.040, RSMo, 490.715, RSMo, 509.050, RSMo, 510.263, RSMo, 537.067, 537.068, 537.117, 537.675, and 537.760 to 537.765 and 538.300, RSMo, 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 538.230; certain sections not applicable, RSMo 538.300
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
(1971) Where parents of deceased child were not made defendants in plaintiff's suit against child's administrator, they could not bring themselves into that action as counter-claimants for wrongful death. State ex rel. Saupe v. Swink (A.), 475 S.W.2d 466.
(1973) A husband or wife, when there is no living father or mother of the deceased, may sue at any time within two years. Montemayor v. Harvey (Mo.), 490 S.W.2d 61.
(1974) Held that father has an absolute right to intervene in an action brought by mother for wrongful death of their son. State ex rel. Slibowski v. Kimberlin (A.), 504 S.W.2d 237.
(1974) Held that stepdaughter cannot maintain an action for wrongful death of her mother against her stepfather since doctrine of interspousal immunity would operate to bar such action by the mother and would extend to the daughter. Klein v. Abramson (A.), 513 S.W.2d 714.
(1975) Even though alleged daughter of deceased was born seven months after putative father's death she would have had to have filed within the year to have prevented deceased's mother from appropriating the action. Wessels v. Gupfel (A.), 522 S.W.2d 653.
(1976) Held, it is essential to plead and prove that any heir who would receive damages collected, when distributed under laws of descent and distribution, suffered a pecuniary loss by reason of the death. Pittock v. Gardner (Mo.), 530 S.W.2d 217.
(1976) If the deceased left a surviving father or mother, the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. State ex rel. Kansas City Stock Yards v. Clark (Mo.), 536 S.W.2d 142.
(1976) Held, since an unborn fetus is incapable of maintaining an action there is no cause of action to pass to another and no claim for wrongful death can be asserted. State ex rel. Hardin v. Sanders (Mo.), 538 S.W.2d 336.
(1978) Parents could recover for wrongful death of an unmarried adult child who left no surviving minor children. State ex rel. Zigler v. Adolf (A.), 561 S.W.2d 691.
(1978) Held, that divorced father not entitled to equal interest in judgment for wrongful death where mother paid vast majority of expenses arising from accident. Taylor v. Aspey (A.), 567 S.W.2d 670.
(1978) Held, infant child of deceased unmarried minor deserves no preference over any other child and must bring action within one year for wrongful death. Kausch v. Bishop (Mo.), 568 S.W.2d 532.
(1984) Child decreed equitably adopted by his aunt six months after her death was a proper plaintiff in a wrongful death action based upon her death. Holt v. Burlington Northern R. Co. (Mo.App.W.D.), 685 S.W.2d 851.
(1990) Non-viable fetus is not a person within the meaning of wrongful death statute. Rambo v. Lawson, 799 S.W.2d 62 (Mo.banc).
(1991) Statute limits wrongful death action to a single or sole cause of action. When a person entitled to bring a wrongful death action has settled case, other persons claiming to be within class entitled to recover are barred from bringing an action and have the exclusive remedy of attacking validity of prior judgment under Rule 74.06. Davis v. Wilson, 804 S.W.2d 392 (Mo.App.).
(1992) Under wrongful death statute, survivorship damages incurred by the decedent before death, such as medical expenses and pain and suffering, are recoverable as part of wrongful death claim, but no recovery, either in terms of economic loss or in terms of premature termination of pleasures of life, is allowed for damages to the decedent caused by the death itself. Powell v. American Motors Corp., 834 S.W.2d 184 (Mo.banc.).
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)
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, RSMo. 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, RSMo 538.305
(1987) Award of $6.5 million dollars in action for wrongful death of plaintiff's 22-year-old daughter was not so large to be deemed excessive and not permitted pursuant to this section. Morrissey v. Welsh Co., 821 F.2d 1294 (8th Cir.).
(1989) Because a wrongful death settlement is for the use and benefit of those who sue or are entitled to sue, and because wrongful death is not a claim or cause of action brought on the part of the injured person, a hospital lien does not attach to the settlement of a wrongful death claim. American Family Mutual Insurance Company v. Ward, 774 S.W.2d 135 (Mo.banc).
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)
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
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)
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, RSMo 509.210
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, RSMo, 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, RSMo, 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, RSMo.
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.)
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
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)
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)
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)(1972) This section adds to previously existing law a presumption that the willful concealment of property supplies the intent to steal. It is still, however, a jury issue as to whether there existed a willful concealment. The presumption is rebuttable by evidence such as that accused placed the tape recorder batteries in his pocket to aid in inspecting a magazine on a rack, and that he had no intent to steal. Schwane v. Broger Company (A.), 480 S.W.2d 113.
(1978) It was error for trial court to read a portion of statute, but counsel failed to state the proper objection at time evidence was admitted. Bly v. Skaggs Drug Centers, Inc. (A.), 562 S.W.2d 723.
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
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)
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
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
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
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
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
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
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
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
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, RSMo 387.180
Failure of railroad to receive and deliver bulk grain, RSMo 389.540
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
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, RSMo 389.650
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
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
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)
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)
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)
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, RSMo, 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
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
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
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 some 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 of any type 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, 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 activities", * those dangers or conditions which are an integral part of equine activities, including but not limited to:
(a) The propensity of any equine 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 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 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) "Participant", * any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
2. Except as provided in subsection 4 of this section, an equine activity sponsor, an equine professional 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 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, or any other person from injury, loss, damage or death of the participant resulting from any of the inherent risks of equine activities.
3. This section shall not apply to the horse racing industry as regulated in sections 313.050 to 313.720, RSMo. 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, RSMo.
4. The provisions of subsection 2 of this section shall not prevent or limit the liability of an equine activity sponsor, an equine professional or any other person if the equine activity sponsor, equine professional 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 it did cause the injury; or
(2) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular equine based on the participant's age, obvious physical condition or the participant's representations of his 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 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 or an equine professional under liability provisions as set forth in any other section of law.
6. Every equine 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 professional conducts equine activities if such stables, corrals or arenas are owned, managed or controlled by the equine professional. 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 and equine activity sponsor for the providing of professional services, instruction or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional's or equine 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 professional is not liable
for an injury to or the death of a participant in equine
activities resulting from the inherent risks of equine activities
pursuant to the Revised Statutes of Missouri.
(L. 1994 S.B. 457)*Word "means" appears here in original rolls.
**Word "them" appears in original rolls.
(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.).
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, RSMo.
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)
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
(1973) Section 537.330 did not abrogate the common law right of punitive damages. State ex rel. Smith v. Greene (Mo.), 494 S.W.2d 55.
(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.).
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, RSMo, 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.).
537.345. As used in sections 537.345 to 537.347, 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.
(L. 1983 S.B. 162 § 1)(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).
537.346. Except as provided in sections 537.345 to 537.348, 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)
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)
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, RSMo 577.161
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, RSMo. 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
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 hinderin