Statutes of Limitations (MISSOURI)
Personal Injury - 5 yrs. [V.A.M.S. 516.120]
Wrongful Death -3 yrs. [V.A.M.S. 537.100]
Breach of Implied Warranty (if Personal Injury or Property Damage involved) - 5 yrs. [V.A.M.S. 516.120]
Property Damage - 5 yrs. [V.A.M.S. 516.120]
Written Contracts - 10 yrs. [V.A.M.S. 516.110] or 5 yrs. [V.A.M.S. 516.120] (depending on type of contract)
Oral Contracts - 5 yrs. [V.A.M.S. 516.120]
Contracts for Sale (goods) and Breach of Warranty (unless Property Damage or Personal Injury) - 4 yrs. (from tender of delivery) [V.A.M.S.400.2-725]
The cause of action is not deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment [V.A.M.S. 516.100].
Statute of Repose (Products) (MISSOURI)
Admissibility of Expert Testimony (MISSOURI)
Per § 490.065 R.S.Mo., the facts or data in a particular case upon which an expert bases an opinion must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable. In deciding whether the facts and data on which the expert relies are reasonably reliable, the trial courts independently assesses their reliability [Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299 (Mo. 2011)].
Causes of Action (MISSOURI)
In a products liability case, a plaintiff may seek recovery upon: (1) a theory of negligence; (2) a theory of strict liability; or (3) a theory of breach of warranty (express or implied) [Ragland Mills, Inc. v. General Motors Corp., 763 S.W.2d 357 (Mo. Ct. App. 1989)].
Strict Liability – Missouri has adopted Rest. (2nd) of Torts, 402A. One who sells any product in a defective condition, unreasonably dangerous to the user (or to his property) is subject to liability for physical harm thereby caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold [Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo. 1969)].
Negligence – In negligence cases the duty owed is based on the foreseeable or reasonable anticipation that harm or injury is a likely result of acts or omissions (on the other hand, strict liability is based in part on the foreseeable or reasonably anticipated use of the product, rather than on the reasonably anticipated harm the product may cause) [Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. 1977)].
Breach of Warranty – Missouri has adopted the standard UCC express warranty [§ 400.2-313 R.S.Mo.]; implied warranty of merchantability [§ 400.2-314 R.S.Mo.]; implied warranty of fitness for particular purpose [§ 400.2-315 R.S.Mo.]. A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer, who is a guest in his home or who is an employee, servant or agent of his buyer if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [§ 400.2-315 R.S.Mo.]. Whether the words “strict liability” or “implied warranty” or both combined are used, the difference in Missouri would not be one of substance since Missouri courts are clearly recognizing the tort nature of the liability imposed; a products liability case is now considered to be tortious and any recovery is really in tort [Witherspoon v. General Motors Corp., 535 F. Supp. 432 (W.D. Mo. 1982)].
Definition of “Defect” (MISSOURI)
A product is defective and dangerous when put to a reasonably anticipated use, and that the plaintiff sustained damages as a direct result of the defect [Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233 (Mo. Ct. App. 1987)].
A product is unreasonably dangerous if: (1) the seller would be negligent if he sold the product knowing of the risk involved; or (2) the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it [Racer v. Utterman, 629 S.W.2d 387 (Mo. Ct. App. 1981)].
Liability of Sellers (MISSOURI)
Any person who is engaged in the business of selling products is subject to strict liability. The rule applies to any manufacturer, wholesale, retail, dealer, or distributor [Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233 (Mo. Ct. App. 1987)].
However, a defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim. A defendant may move for dismissal within the time for filing an answer or other responsive pleading. The motion must be accompanied by an affidavit stating that the defendant is aware of no facts or circumstances upon which a verdict might be reached against him, other than his status as a seller in the stream of commerce. This rules applies if another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff’s claim [§ 537.762 R.S.Mo.].
Comparative Negligence – Missouri follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983)].
Pure comparative fault applies to products liability claims. “Fault” is limited to: (1) the failure to use the product as reasonably anticipated by the manufacturer; (2) use of the product for a purpose not intended by the manufacturer; (3) use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger; (4) Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger; (5) the failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or (6) the failure to mitigate damages [§ 537.765 R.S.Mo.].
Assumption of Risk – Included in the definition of “fault” for the purpose of the comparative fault analysis [§ 537.765 R.S.Mo.].
Product Misuse – Included in the definition of “fault” for the purpose of the comparative fault analysis [§ 537.765 R.S.Mo.].
Product Alteration/Modification – Strict liability requires that the product be in substantially the same condition as when it left defendant. If plaintiff produces evidence that there were no alterations to the product which would create a defect that could be the proximate cause of the damages incurred, he makes a submissible case as to the existence of the defect at the time of sale [Williams v. Deere & Co., 598 S.W.2d 609 (Mo. Ct. App. 1980)]. Not included in the definition of “fault” for the purpose of the comparative fault analysis.
Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (MISSOURI)
Plaintiff may not recover on a theory of strict liability where the only damage is to the product sold [Sharp Bros. Contracting Co. v. American Hoist & Derrick Co., 703 S.W.2d 901 (Mo. 1986)].
Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (MISSOURI)
The existence of a defect may be inferred from circumstantial evidence with or without the aid of expert opinion evidence [Winters v. Sears, Roebuck & Co., 554 S.W.2d 565 (Mo. Ct. App. 1977)].
Design Defects (MISSOURI)
Defective design cases are cognizable under strict liability in tort [Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. 1977)].
The primary inquiry in a design defect case is whether the product, because of the way it is designed, creates an unreasonable risk of danger to the consumer or user when put to normal use. To establish liability in a design defect case, the plaintiff bears the burden of demonstrating that the product, as designed, is unreasonably dangerous and therefore “defective”, and that the demonstrated defect caused his injuries [Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371 (Mo. 1986)].
A product, as designed, is actionable if the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer, who either purchases it or uses it, with the ordinary knowledge common to the community as to its characteristics. This language is commonly referred to as “the consumer expectation test” [Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371 (Mo. 1986)].
Failure to Warn (MISSOURI)
A product may be rendered unreasonably dangerous and therefore actionable because of the absence of a warning concerning use or misuse, or because the warning that has been given is informationally deficient. This theory of liability is expressly recognized in Missouri [Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371 (Mo. 1986)].
To prevail on a strict liability failure to warn theory, plaintiff must show: (1) defendant sold the product in question in the ordinary course of business; (2) the product was unreasonably dangerous at the time of sale when used as reasonably anticipated without knowledge of its characteristics; (3) defendant did not give adequate warning of the danger; (4) the product was used in a reasonably anticipated manner; and (5) plaintiff was damaged as a direct result of the product being sold without an adequate warning. In addition, there are two distinct causation requirements for a failure to warn claim: (1) the product for which there was no warning must have caused plaintiff's injuries; and (2) plaintiff must show a warning would have altered his behavior [Tuttle v. Steris Corp., 2014 U.S. Dist. LEXIS 36616 (E.D. Mo. 2014)].
It is not necessary to show with certainty that the warning would have prevented the casualty. It also is not necessary to demonstrate with certainty that warnings placed directly on the product would have been seen and heeded. A rebuttable presumption arises that a warning will be heeded. If there is no warning, the manufacturer may reasonably assume that the user will neither read nor heed it. When no warning is given, the causation question becomes one for the jury to determine [Hill v. Air Shields, Inc., 721 S.W.2d 112 (Mo. Ct. App. 1986)].
Independent Cause of Action for Evidence Spoliation (MISSOURI)