The Missouri Supreme Court has unanimously abolished the last vestiges of contributory negligence in the recently decided Children’s Wish Foundation International, Inc. v. Mayer Hoffman McCann, P.C.. So what is contributory negligence and why should you care?
First, what is it? In 1983 the Missouri Supreme Court adopted comparative fault. Under comparative fault a jury will decide the relative levels of fault of the various parties involved in any kind of negligence case. The issue arises most often in personal injury and medical malpractice cases. Take your basic auto accident case. In an intersectional accident, you may have one driver who failed to yield and the other driver may have been speeding. Both are at fault. Under comparative fault the jury decides how much each party is at fault. For example, if one driver is injured and the jury finds that he was 10% at fault, the jury would decide the value of that drivers injuries and then the judge would enter a judgment for 90% of the damages. The system is inherently fair and equitable.
Before Missouri adopted comparative fault it operated under the contributory negligence standard. Under contributory negligence if the injured driver was even 1% at fault, he could not recover anything for his injuries. An inherently unfair system. But as I said, it was abolished in 1983, right? Well, not entirely. And that leads to why it might matter to you.
In the intervening years, various appellate courts have determined that contributory negligence was still the standard in negligence cases that involve only monetary damages, as opposed to physical injuries. Mostly this was cases of legal malpractice and accounting malpractice. The result? Attorneys and accountants sued for malpractice have been able to show even slight negligence on the part of their clients and walk away without paying a dime for the damages they caused by their negligence.
Well, not anymore. The Children’s Wish Foundation case has clearly and finally abolished contributory negligence in Missouri. From now on a jury will be instructed to determine the relative fault of all parties in any negligence case.
And that is a good thing for all Missouri citizens.
Todd N. Hendrickson concentrates his practice in the areas of medical malpractice, personal injury, and legal malpractice. You can contact him by clicking here or calling 314-721-8833.