Sandra J. Wunderlich*
Chapter 1
DAMAGES GENERALLY
I.
General
A. (§1.1) Definition
B. (§1.2) Purpose
C. Compensatory Damages
1. (§1.3) Purpose
2. (§1.4) Contract Actions
3. (§1.5) Damage to Real Property
D. (§1.6) General Damages
E. (§1.7) Special Damages
F. (§1.8) Equitable Remedies
G. (§1.9) Liquidated Damages
II.
Nominal Damages
A.
B.
C.
D.
E.
III.
(§1.10)
(§1.11)
(§1.12)
(§1.13)
(§1.14)
Definition
When Awarded
Wrongful Death Actions
Negligence Actions
Jury Instructions
Mitigation
A.
B.
C.
D.
E.
F.
G.
(§1.15)
(§1.16)
(§1.17)
(§1.18)
(§1.19)
(§1.20)
(§1.21)
General
Personal Injuries
Property Damages
Contracts
Employment
Landlord and Tenant
Extent of Bar
______
Ms. Wunderlich received her B.A., 1988, and J.D., 1991, from the University of
Missouri-Columbia. She practices in the St. Louis office of the firm of Stinson
Morrison Hecker LLP.
*
1–1
DAMAGES GENERALLY
IV.
Collateral Source Rule
A. (§1.22) General
B. Actions to Which Applicable
1. (§1.23) Torts
2. (§1.24) Contracts
3. (§1.25) Other
C. Payments to Which Applicable
1. (§1.26) Insurance
2. (§1.27) Unemployment Compensation
3. (§1.28) Workers’ Compensation
4. (§1.29) Sick Leave
5. (§1.30) Gratuities
6. (§1.31) Income Taxes
7. (§1.32) Remarriage
8. (§1.33) Railroad Retirement Act
9. (§1.34) Free Public Services
D. Exceptions
1. (§1.35) Payments by or for Tortfeasor
2. (§1.36) Claimant’s Insurance
3. (§1.37) Tortfeasor’s Insurance
4. (§1.38) Treatment by Tortfeasor
5. (§1.39) Payments by Tortfeasor
6. (§1.40) Payments by Joint Tortfeasor
V.
Burden of Proof
A.
B.
C.
D.
E.
F.
(§1.41) General
(§1.42) Causation
(§1.43) Injury
(§1.44) Pecuniary Damages
(§1.45) Punitive Damages
(§1.46) Loss of Earnings
1. (§1.47) Past Earnings
2. (§1.48) Future Earnings
3. (§1.49) Inference of Future Loss
G. (§1.50) Lost Profits
1. (§1.51) Established Business
2. (§1.52) Dependent on Personal Skill
3. (§1.53) Uncertainty
4. (§1.54) Nature of Loss Prevents Proof
5. (§1.55) Wrongful Conduct Prevents Proof
H. (§1.56) Medical Expenses
I. (§1.57) Mitigation
VI.
Choice of Law
A. (§1.58) Tort
B. (§1.59) Contract
1–2
DAMAGES GENERALLY
I.
§1.3
General
A. (§1.1) Definition
Webster’s New International Dictionary [571 (1993)] defines the word
“damages” as “the estimated reparation in money for detriment or injury
sustained; compensation or satisfaction imposed by law for a wrong or injury
caused by [a] violation of a legal right.” The terms “reparation” and
“compensation,” as commonly understood, carry with them the idea of
“making whole,” or giving an equivalent or substitute of equal value.
Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 89, 95 (Mo. banc 1925).
B. (§1.2) Purpose
For every actionable injury there is a corresponding right to damages,
and injury arises when a legal right is violated. See:

Am. Bus. Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146
(8th Cir. 1986)

Stroud v. Masek, 262 S.W.2d 47, 51 (Mo. 1953)

Rusk Farms, Inc. v. Ralston Purina Co., 689 S.W.2d 671, 681
(Mo. App. E.D. 1985)
What the law aims at in every case is reasonable compensation to the
injured party. Dimick v. Noonan, 242 S.W.2d 599, 603 (Mo. App. W.D.
1951); DeSalme v. Union Elec. Light & Power Co., 102 S.W.2d 779,
782 (Mo. App. E.D. 1937).
C. Compensatory Damages
1. (§1.3) Purpose
Actual damages are compensatory and are measured by the loss
or injury sustained. Stiffelman v. Abrams, 655 S.W.2d 522, 531
(Mo. banc 1983); Rotermund v. Basic Materials Co., 558 S.W.2d
688, 691 (Mo. App. E.D. 1977). Weeks-Maxwell Construction Co. v.
Belger Cartage Service, Inc., 409 S.W.2d 792, 796 (Mo. App. W.D.
1966) (quoting 25 C.J.S. Damages § 3, pp. 627–28 (1966)), states:
“As a general rule, a person who has sustained loss or injury may receive
no more than just compensation for the loss or injury sustained. He is
not entitled to be made more than whole, and he may not recover from
all sources an amount in excess of the damages sustained, or be put in a
better condition than he would have been had the wrong not been
committed.”
1–3
§1.4
DAMAGES GENERALLY
There must be a wrong done to one person by another and a
consequent injury or loss to permit recovery because of the wrong
committed. Even though the law may presume damages in some
cases and allow a nominal recovery, there must be a real injury to
sustain a substantial recovery. State ex rel. Armour Packing Co. v.
Dickmann, 124 S.W. 29 (Mo. App. E.D. 1910). The ultimate test
for damage is whether the award will fairly and reasonably
compensate the plaintiff for the injuries. Anderson v. Burlington
N. R.R. Co., 700 S.W.2d 469, 476 (Mo. App. E.D. 1985). In
Rothenhoefer v. City of St. Louis, 410 S.W.2d 73 (Mo. 1966), the
Court held that the burden of proof for damages is on the party
claiming damage; when a building improperly razed by the
defendant had no value because of an earlier fire, the plaintiff
was not entitled to recover damages.
2. (§1.4) Contract Actions
In a breach of contract case, the goal in awarding damages is to
put the nonbreaching party in as good a position as he or she
would have been in if the contract had been performed. See
Williams v. Hubbard, 789 S.W.2d 810 (Mo. App. W.D. 1990). In
Hernandez v. Westoak Realty & Investment, Inc., 771 S.W.2d 876,
880 (Mo. App. E.D. 1989), the court held that this goal is usually
achieved by awarding damages representing what most
nonbreaching parties would suffer in similar circumstances, then
adding items of consequential damages that are peculiar to the
parties in the particular case. A plaintiff claiming breach of
contract has available and does not need to choose between three
types of damages—actual, consequential, and benefit of the
bargain damages. Ullrich v. CADCO, Inc., 244 S.W.3d 772, 779
(Mo. App. E.D. 2008). These types of damages are not necessarily
inconsistent with each other, but a plaintiff may not be made
whole more than once. Trimble v. Pracna, 167 S.W.3d 706, 711
(Mo. banc 2005). If the damages are the same, the damage award
merges so that there is one recovery. Id.
Damages for loss of use are regarded as consequential damages.
World Enters., Inc. v. Midcoast Aviation Servs., Inc., 713 S.W.2d
606, 610 (Mo. App. E.D. 1986) (a contract provision excluding
consequential damages excluded “loss of use” damages).
Consequential damages for breach of contract are those damages
that naturally and proximately flowed from the breach of
contract, and they must have been reasonably contemplated by
the parties at the time of the parties’ agreement. Ullrich,
1–4
DAMAGES GENERALLY
§1.6
244 S.W.3d at 779. As long as the consequential damages are not
duplicative of actual damages, they are recoverable in a claim for
breach of contract, provided consequential damages were not
excluded. Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812,
817–18 (Mo. App. S.D. 2008).
3. (§1.5) Damage to Real Property
Generally, the measure of damage to real property is the
difference between the market value of the property immediately
before and immediately after the damage is sustained. See
Dubinsky v. United States Elevator Corp., 22 S.W.3d 747, 751
(Mo. App. E.D. 2000). When the amount of damage is insignificant
compared to the value of the property as a whole and involves
only a small part of the property, the measure of damage may be
based on the cost of repair; this is an exception to the general
rule. Id. To qualify for this exception, the property owner must
present evidence that the cost of repair is insignificant compared
to the overall market value of the property. Id. When this is
shown, the plaintiff is entitled to recover the cost of repairing or
replacing the damaged property unless the cost of repair or
replacement would constitute an economic waste, in which case
the proper measure of damages is the diminished value of the
property. Id. at 751–52. The cost of repair or replacement
constitutes economic waste when it is disproportionate to the
diminution in property value. Id. Once the plaintiff has come
forward with evidence of the cost of repair, the burden is on the
defendant to present evidence that the repair constitutes
economic waste. Id.
D. (§1.6) General Damages
“An ‘injury’ as an invasion of a legally protected right may cause
either general or special damages.” Porter v. Crawford & Co.,
611 S.W.2d 265, 271 (Mo. App. W.D. 1980). “‘Damages both general
and special constitute but a single element, albeit a necessary one, of
a tort.’” Id. (quoting Travelers Indem. Co. v. Chumbley, 394 S.W.2d
418, 422 (Mo. App. S.D. 1965)).
General damages are those that the law implies or presumes to have
occurred as the natural and logical consequence of a defendant’s
wrongful act. McMahon v. Kansas City Rys. Co., 233 S.W. 64, 66
(Mo. App. W.D. 1921). Special damages are those that actually result
from the wrong complained of but are not such a necessary result
that they are implied by law. See:
1–5
§1.6
DAMAGES GENERALLY

Parsons Constr. Co. v. Mo. Pub. Serv. Co., 425 S.W.2d 166,
173 (Mo. 1968)

Porter, 611 S.W.2d 265

Condos v. Associated Transps., Inc., 453 S.W.2d 682, 688
(Mo. App. E.D. 1970)

Travelers Indem. Co., 394 S.W.2d 418
General damages are not limited to those that must necessarily and
inevitably result from the wrongful act. It is enough if in a particular
instance they do result from the wrongful act directly and
proximately and without reference to the special character, condition,
or circumstances of the person wronged. The law then, as a matter of
course, implies or presumes them as the effect that necessarily
results from the wrongful act in a particular instance. Burns v.
Burns, 193 S.W.2d 951, 952 (Mo. App. E.D. 1946).
Thus, even when the plaintiff has only included skeletal allegations of
the damages sustained, general damages are recoverable. Stefl v.
Medtronic, Inc., 916 S.W.2d 879, 883 (Mo. App. E.D. 1996). Special
damages, however, cannot be recovered when they have not been pled
specifically. Id.
The courts have held the term “general damages” to include:

loss of use of a vehicle, Parsons Constr., 425 S.W.2d 166;

mental anguish, McMahon, 233 S.W. 64;

damage to reputation through false arrest and imprisonment,
Burns, 193 S.W.2d 951; and

market value of an animal injured in the course of
transportation, Van Buskirk v. Quincy, O. & K.C. R. Co.,
111 S.W. 832, 834 (Mo. App. W.D. 1908).
In Prange v. Prange, 755 S.W.2d 581 (Mo. App. E.D. 1987), an assault
and battery case, the court held that mental anguish and humiliation
were compensable through general damages because they are
necessary and natural consequences of assault. See also Brown v.
Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 338 (Mo. App. S.D.
1991); DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 534
(Mo. App. E.D. 1991) (both citing Parsons Constr., 425 S.W.2d 166;
Porter, 611 S.W.2d 265; and McMahon, 233 S.W. 64).
1–6
DAMAGES GENERALLY
§1.7
E. (§1.7) Special Damages
Special damages are those that are not considered to arise “naturally”
or “usually” from the wrongful act but that arise from the
circumstances peculiar to the specific contract and that should have
been contemplated by the parties at the time they contracted.
Hernandez v. Westoak Realty & Inv., Inc., 771 S.W.2d 876, 880
(Mo. App. E.D. 1989). Hernandez also holds that items of consequential
damages peculiar to the nonbreaching party are special damages that
the plaintiff is entitled to if expressly pled.
Special damages must have been actually incurred, and they are not
implied by law. They are either superadded to general damages from
an act injurious in itself or are damages that arise from an act not
actionable in itself but that is injurious only in its consequences.
Van Buskirk v. Quincy, O. & K.C. R. Co., 111 S.W. 832, 834 (Mo. App.
W.D. 1908); Fleddermann v. St. Louis Transit Co., 113 S.W. 1143,
1145 (Mo. App. E.D. 1908) (whether the injury was general or special
depends on whether it is taken in law to be a necessary consequence
of the tortious acts alleged because a like result so usually follows
these acts that it is legally presumed to follow in a particular case).
Prejudgment interest in tort cases is not special damage. The right to
prejudgment interest in tort does not arise from the wrongful act, but
rather from the tortfeasor’s rejection of a demand or offer of
settlement lower than the eventual judgment. Chambers ex rel. Abel
v. Rice, 858 S.W.2d 230, 233 (Mo. App. S.D. 1993). But the demand
must be specific enough to trigger the right to prejudgment interest.
In Kaplan v. U.S. Bank, N.A., No. ED 85640, 2005 WL 3041002
(Mo. App. E.D. Nov. 15, 2005) (Kaplan II), transfer ordered
February 28, 2006, the appellate court reversed the trial court’s
award of prejudgment interest in a tort action. In Kaplan II, the
plaintiff filed suit against the bank and its contractor for the
improper disposal of PCB (polychlorinated biphenyls)-contaminated
soil on the plaintiff’s property. Before filing suit, as is required by
42 U.S.C. § 6972 of the Resource Conservation and Recovery Act of
1976 (42 U.S.C. §§ 6901 et seq.), the plaintiff sent the defendant
notice that it intended to take corrective action to remove the
contaminated soil from its property and that it intended to file suit to
recover the costs of the removal plus all other costs associated with
the removal, including attorney fees and costs. The appellate court
rejected the plaintiff’s claim that this notice letter constituted a
demand under § 408.040.2, now RSMo Supp. 2011. The court found
1–7
§1.7
DAMAGES GENERALLY
that the plaintiff’s “demand” was neither definite nor readily
ascertainable from the context of the letter.
Courts have held the following were special damages that must be
specifically pled:

the professional aid of an attorney to mitigate damages and
avoid future losses, Hoffman v. Quality Chrysler Plymouth
Sales, Inc., 706 S.W.2d 576, 581 (Mo. App. E.D. 1986);

the cost of an operation after physical injury, Condos v.
Associated Transps., Inc., 453 S.W.2d 682, 688 (Mo. App. E.D.
1970);

medical and hospital expenses, loss of earnings, and
diminished capacity to work, Travelers Indem. Co. v.
Chumbley, 394 S.W.2d 418, 422 (Mo. App. S.D. 1965);

malignancy or cancer resulting from an injury, Murray v.
De Luxe Motor Stages of Ill., 133 S.W.2d 1074, 1077 (Mo. App.
E.D. 1939);

the shortening of the plaintiff’s leg following an injury,
Fleddermann, 113 S.W. 1143

insanity and traumatic neurosis, Connor v. Kansas City Rys.
Co., 250 S.W. 574, 576 (Mo. 1923);

miscarriage and a subsequent infection, Walquist v. Kansas
City Rys. Co., 237 S.W. 493, 495 (Mo. 1922); and

loss of services and medical bills, Coontz v. Mo. Pac. Ry. Co.,
22 S.W. 572, 573 (Mo. 1893).
In limited circumstances, attorney fees may be awarded as “special
damages.” In Miller v. Higgins, 452 S.W.2d 121 (Mo. 1970), the Court
awarded attorney fees and accountant fees as special damages, noting
that these fees were not incurred as part of the plaintiff’s effort to
litigate his claim; rather, they were incurred in an effort to mitigate
damages and avoid future losses. Similarly, in Seidel v. Gordon A.
Gundaker Real Estate Co., 904 S.W.2d 357, 364 (Mo. App. E.D. 1995),
the court awarded attorney fees to the plaintiff as part of her
damages, reasoning that she had been fraudulently induced into
signing a contract to purchase a residence but learned of the fraud
1–8
DAMAGES GENERALLY
§1.9
before closing the sale. The plaintiff was sued by the sellers for
specific performance. The plaintiff settled the seller’s claim and
sought attorney fees and the cost of settlement from the defendant in
a subsequent suit. The court agreed that the attorney fees to defend
against the seller’s claim and the cost of the settlement were the
appropriate measure of damage and were special damages that were
recoverable under the circumstances. Id.
In Lucas Stucco & EIFS Design, LLC v. Landau, 324 S.W.3d 444, 445
(Mo. banc 2010), the Supreme Court of Missouri reiterated that
attorney fees must be plead as special damages, but the plaintiff is
not required to set forth the statutory basis for the recovery of
attorney fees as long as the elements to satisfy the statutory basis for
the recovery of fees were pled.
F. (§1.8) Equitable Remedies
Although the traditional definition of “damages” remains the same
under the law, some courts have held that equitable remedies that
cost money are included in the definition of damages as that term is
used in an insurance contract. In Farmland Industries, Inc. v.
Republic Insurance Co., 941 S.W.2d 505, 508 (Mo. banc 1997), the
Supreme Court of Missouri considered this issue in the context of
environmental response costs. The insurance company argued that
these costs were in the nature of an equitable remedy and thus not
covered by the policy. The Court, however, held that these costs were
“damages” for purposes of the insurance policies at issue, finding no
reason to distinguish between an equitable remedy in the form of cost
recovery and legal damages. Id. at 508–09; see also Superior Equip.
Co. v. Md. Cas. Co., 986 S.W.2d 477, 483 (Mo. App. E.D. 1998); Brown
Group, Inc. v. George F. Brown & Sons, Inc., 963 S.W.2d 285, 287
(Mo. App. E.D. 1997).
G. (§1.9) Liquidated Damages
A liquidated damages clause in a contract represents the parties’
stipulation that a particular measure of compensation will represent
the damages in the event of a breach. Diffley v. Royal Papers, Inc.,
948 S.W.2d 244, 246 (Mo. App. E.D. 1997). Liquidated damages take
the place of actual damages. Eureka Dev., Inc. v. Port Jefferson
Realty, LLC, No. 4:05CV1281 FRB, 2007 WL 2908179, at *2 (E.D. Mo.
Oct. 3, 2007) (applying principles of Missouri law). Thus, when there
is an enforceable liquidated damages clause, there is no need to prove
actual damages, and whether the actual damages are more or less
1–9
§1.9
DAMAGES GENERALLY
than the liquidated damages is of no consequence. Id. But the
plaintiff must show at least some actual harm or damage caused by
the breach before a liquidated damages clause is triggered. Grand
Bissell Towers, Inc. v. Joan Gagnon Enters., Inc., 657 S.W.2d 378, 379
(Mo. App. E.D. 1983).
Because the liquidated damages are intended to compensate for the
breach and are, in essence, a stipulation as to the amount of actual
damages, the plaintiff cannot recover both liquidated damages and
actual damages for the same injury. Paragon Group, Inc. v.
Ampleman, 878 S.W.2d 878, 882 (Mo. App. E.D. 1994). With a valid
liquidated damages clause, the nonbreaching party does not have a
duty to mitigate damages. Burst v. R.W. Beal & Co., 771 S.W.2d 87,
91–92 (Mo. App. E.D. 1989). Thus, there is no right of offset for
benefits received by the nonbreaching party or any claim for unjust
enrichment by enforcing a valid liquidated damages clause because
this would have the effect of eliminating this provision in a contract.
Eureka Dev., 2007 WL 2908179, at *3.
If the agreed-on amount is a reasonable forecast of the harm caused
by the breach, and the harm caused by the breach is difficult to
accurately measure, a liquidated damages provision is enforceable.
Id. Courts, however, require that the liquidated damages provision be
compensatory rather than a penalty. Id. If its application is punitive,
the courts may refuse to enforce it. Id.; see also Frank v. Sandy
Rothschild & Assocs., Inc., 4 S.W.3d 602, 605–06 (Mo. App. E.D.
1999). In evaluating whether the liquidated damages is penal in
nature, courts balance the ability to forecast damages accurately with
the requirement that the liquidated damages be a reasonable
estimate, and the more difficult it is to measure the actual damages,
the less weight is given to the requirement that it be a reasonable
forecast. Valentine’s, Inc. v. Ngo, 251 S.W.3d 352 (Mo. App. S.D.
2008). Courts look to the intent of the parties as determined from the
contract as a whole to determine whether the liquidated damages
provision is intended for compensation or is in the nature of a penalty
designed to compel performance. Repair Masters Constr., Inc. v. Gary,
277 S.W.3d 854, 859 (Mo. App. E.D. 2009) (the court reversed
judgment in favor of the plaintiff for the liquidated damages amount,
finding that the provision was unconscionable in that the contract did
not include the price or scope of the work to be completed.)
Courts have recognized that a liquidated damages clause could
render a contract unenforceable. Hawkins v. Foster, 897 S.W.2d 80,
85 (Mo. App. S.D. 1995) (recognizing that Missouri does not enforce
1–10
DAMAGES GENERALLY
§1.11
unreasonably large liquidated damages on the ground of public policy
against penalties, but an unreasonably small amount might be
unenforceable as unconscionable). But the mere presence of a
liquidated damages clause is not sufficient to make the contract
illusory or unenforceable. City of Richmond Heights v. Waite,
280 S.W.3d 770, 777 (Mo. App. E.D. 2009).
II.
Nominal Damages
A. (§1.10) Definition
The term “nominal damages” means a trivial or trifling amount.
Seelig v. Mo., K. & T. Ry. Co., 230 S.W. 94 (Mo. 1921). An award of
only $25 per month was held to be actual damages rather than
nominal damages. See Davis v. Broughton, 369 S.W.2d 857 (Mo. App.
S.D. 1983). Similarly, $1,000 has been held to be excessive to qualify
as nominal damages. Green v. Study, 286 S.W.3d 236, 242 (Mo. App.
S.D. 2009). Nominal damages are usually fixed at a trivial or trifling
amount no more than $1.00, and sometimes less. Id. Nominal
damages can be significant because they may determine the right to
an award of costs and punitive damages. See:

Stroud v. Masek, 262 S.W.2d 47, 51 (Mo. 1953)

Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522, 526–27
(Mo. App. W.D. 1994)

Thornbrugh v. Poulin, 679 S.W.2d 416, 418 (Mo. App. S.D.
1984)

Wise v. Towse, 366 S.W.2d 506, 509 (Mo. App. W.D. 1963)
See also Davis, 369 S.W.2d at 864 (nominal damages are damages in
name only, “a mere peg to hang costs on”).
B. (§1.11) When Awarded
The general theory of nominal damages is that they should be
allowed when a legal right has been invaded but no actual damages
were suffered or proved, or when there is no evidence from which the
value of the damages may be ascertained. See:
1–11
§1.11
DAMAGES GENERALLY

McClellan v. Highland Sales & Inv. Co., 484 S.W.2d 239, 241
(Mo. 1972) (trespass)

La Grange Reorganized Sch. Dist. No. R-VI v. Smith,
312 S.W.2d 135, 139 (Mo. 1958) (trespass)

Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522 (Mo. App.
W.D. 1994)
Nominal damages are awarded as a recognition of some breach of a
duty owed by the defendant to the plaintiff and not as a measure of
compensation for loss or detriment suffered. In Simpkins v. Ryder
Freight System, Inc., 855 S.W.2d 416, 422 (Mo. App. W.D. 1993), the
court explained that nominal damages are not a species of actual
damages because it is the absence of actual damage that renders
the defendant’s misconduct liable for nominal damages. Nominal
damages are imputed to vindicate a right that otherwise would go
without redress. But nominal damages cannot be awarded when
pecuniary damages are an element of the tort claimed. Tindall v.
Holder, 892 S.W.2d 314, 321 (Mo. App. S.D. 1994). For example,
pecuniary loss is an intrinsic element of an action sounding in fraud
or deceit, and thus, damages must be proven. Id.
In actions for breach of contract, proof of the contract and its breach
give rise to nominal damages regardless of whether actual damages
were suffered. See:

Morehouse v. Behlmann Pontiac-GMC Truck Serv., Inc.,
31 S.W.3d 55 (Mo. App. E.D. 2000)

Kozeny-Wagner, Inc. v. Shark, 709 S.W.2d 149, 152 (Mo. App.
E.D. 1986)

Sunny Baer Co. v. Slaten, 623 S.W.2d 595, 597 (Mo. App. E.D.
1981)

Duncan v. Kelly, 435 S.W.2d 29, 34 (Mo. App. W.D. 1968)
Thus, a submissible case is made regardless of the failure to prove
actual damages. Kincaid Enters., Inc. v. Porter, 758 S.W.2d 503, 504
(Mo. App. W.D. 1988). See also Farer v. Benton, 740 S.W.2d 676
(Mo. App. E.D. 1987), which held that:
1–12
DAMAGES GENERALLY
§1.11

when an actionable injury is shown, the plaintiff has a right
to damages; and

if the evidence is insufficient to provide a basis for calculation
of actual damages, the plaintiff is entitled to nominal
damages.
But see Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695, 700
(Mo. App. E.D. 1996) (damages were an essential element of a breach
of contract action, and the plaintiff’s failure to prove he had been
damaged resulted in a directed verdict); Rice v. W. End Motors, Co.,
905 S.W.2d 541, 542 (Mo. App. E.D. 1995) (the court reversed
judgment for the plaintiff, holding that a breach of a contract that
causes no loss to the plaintiff will not support a judgment).
Recovery of nominal damages has also been allowed without proof of
injury in cases involving:

tortious interference with business relations, Rusk Farms,
Inc. v. Ralston Purina Co., 689 S.W.2d 671, 681 (Mo. App.
E.D. 1985);

statutory service letters, Rotermund v. Basic Materials Co.,
558 S.W.2d 688, 691 (Mo. App. E.D. 1977); Schmidt v. Cent.
Hardware Co., 516 S.W.2d 556, 560 (Mo. App. E.D. 1974);
Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933, 941 (Mo. App.
W.D. 1935);

recovery on replevin bonds, Glidewell v. Bennett, 493 S.W.2d
670, 672 (Mo. App. W.D. 1973);

ejectment, Curd v. Reaban, 232 S.W.2d 389, 392 (Mo. 1950);
Davis v. Broughton, 369 S.W.2d 857, 864 (Mo. App. S.D.
1963);

defamation of title, Greenlake Inv. Co. v. Swarthout,
161 S.W.2d 697, 699 (Mo. App. E.D. 1942);

wrongful discharge of sewage, Carpenter v. City of Versailles,
65 S.W.2d 957, 958 (Mo. App. W.D. 1933);

sheriff’s bond for false return, State ex rel. Armour Packing
Co. v. Dickmann, 124 S.W. 29, 31 (Mo. App. E.D. 1910);
1–13
§1.12
DAMAGES GENERALLY

fraud and deceit, Auffenberg v. Hafley, 457 S.W.2d 929, 939
(Mo. App. E.D. 1970);

slander, Snodgrass v. Headco Indus., Inc., 640 S.W.2d 147,
157 (Mo. App. W.D. 1982); and

compensation for services, Seelig v. Mo., K. & T. Ry. Co.,
230 S.W. 94 (Mo. 1921).
C. (§1.12) Wrongful Death Actions
In wrongful death cases, the law implies pecuniary loss from a
decedent’s legal duty to support a party or a party’s right to receive
support from a decedent. See:

Stroud v. Masek, 262 S.W.2d 47, 51 (Mo. 1953) (husband)

Kastner v. Beech Aircraft Corp., 650 S.W.2d 312, 315
(Mo. App. W.D. 1983) (husband and father)

State ex rel. Kansas City Stock Yards Co. of Me. v. Clark,
536 S.W.2d 142, 148 (Mo. banc 1976) (child)

Aubuchon v. LaPlant, 435 S.W.2d 648, 652 (Mo. 1968) (child)
When a pecuniary benefit from the continued life of a decedent cannot
be shown, nominal damages may not be recovered. Auld v. Terminal
R.R. Ass’n of St. Louis, 463 S.W.2d 297, 300 (Mo. 1970) (brother);
Acton v. Shields, 386 S.W.2d 363, 369 (Mo. 1965) (grandparents,
aunts, and uncles).
D. (§1.13) Negligence Actions
The essential factual elements of a claim for personal injury because
of negligence include duty and a breach of that duty, causation, and
injury. Because damage is an element of a negligence cause of action,
nominal damages cannot be awarded. See:

Biscoe v. Kowalski, 290 S.W.2d 133, 138 (Mo. 1956)

Eickmann v. St. Louis Pub. Serv. Co., 253 S.W.2d 122
(Mo. 1952)

Ponder v. Angel Animal Hosp., Inc., 762 S.W.2d 846, 847
(Mo. App. S.D. 1988)
1–14
DAMAGES GENERALLY
§1.15

Wise v. Sands, 739 S.W.2d 731, 734 (Mo. App. S.D. 1987)

Quick v. All Tel Mo., Inc., 694 S.W.2d 757, 759 (Mo. App. E.D.
1985)

Watts v. Handley, 427 S.W.2d 272, 276 (Mo. App. W.D. 1968)

Wise v. Towse, 366 S.W.2d 506, 510 (Mo. App. W.D. 1963)
But see Johnson v. Summers, 608 S.W.2d 574, 575 (Mo. App. S.D.
1980) (the plaintiffs were entitled to nominal damages in a negligence
action when the plaintiffs’ evidence was insufficient to afford a basis
for the calculation of damages but was sufficient to show
consequential damages to their automobile). Nominal damages cannot
be recovered in a negligence action when no actual loss occurred.
Wise, 366 S.W.2d at 510.
E. (§1.14) Jury Instructions
When a plaintiff seeks to recover nominal damages, at least one
court has approved the use of MAI 4.01 [1980 Revision] (now
[2002 Revision]). The court suggests that the following language be
added at the end of the damage instruction: “[I]f you find in favor of
plaintiff, but do not believe plaintiff sustained compensatory
damages, you must award plaintiff nominal damages in the amount
of one dollar.” Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522, 526
(Mo. App. W.D. 1994).
III.
Mitigation
A. (§1.15) General
Mitigation of damages as a generally recognized principle of law is
also known as the rule of avoidable consequences. It requires
someone who is damaged by another’s breach of some legal duty or
obligation to make reasonable efforts to minimize the resulting
damages. See:

Shaughnessy v. Mark Twain State Bank, 715 S.W.2d 944, 954
(Mo. App. E.D. 1986)

Fletcher v. City of Independence, 708 S.W.2d 158, 171
(Mo. App. W.D. 1986)

Economy Gas Co. v. Bradley, 472 S.W.2d 878, 880 (Mo. App.
S.D. 1971)
1–15
§1.16
DAMAGES GENERALLY
The failure to mitigate damages is an affirmative defense that must
be pled. See State v. Polley, 2 S.W.3d 887, 892 (Mo. App. W.D. 1999);
Blue Ridge Ctr. Ltd. P’ship v. Zadeh, 943 S.W.2d 357 (Mo. App. W.D.
1997).
B. (§1.16) Personal Injuries
A person who suffers an injury is bound to exercise reasonable care in
seeking and accepting medical aid. See:

Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175 (Mo. 1958)

Cline v. City of St. Joseph, 245 S.W.2d 695, 702 (Mo. App.
W.D. 1952)

Adams v. Carlo, 101 S.W.2d 753, 756 (Mo. App. E.D. 1937)
The wrongdoer has a right to complain only if mitigation of damages
can be done safely, Kay v. Kansas City Pub. Serv. Co., 23 S.W.2d
1087, 1088 (Mo. App. W.D. 1930), or without risk of serious injury to
the injured party, King v. City of St. Louis, 155 S.W.2d 557, 565
(Mo. App. E.D. 1941).
If an injury is aggravated by an injured person’s neglect in seeking
and accepting medical aid, the injured person will not be permitted to
recover for injuries and disability that might have been prevented by
reasonable efforts. See:

Stipp, 318 S.W.2d at 175

Steinmeyer v. Baptist Mem’l Hosp., 701 S.W.2d 471 (Mo. App.
W.D. 1985)

Brown v. Kroger Co., 358 S.W.2d 429, 432 (Mo. App. S.D.
1962)

Adams, 101 S.W.2d at 756
Similarly, when a plaintiff neglects to undergo a simple operation
that could, without serious danger, relieve the plaintiff of injuries, the
damages will be minimized in proportion to the amount the injuries
would have been reduced by the operation less the cost of the
operation and compensation for the pain occasioned by it. King,
155 S.W.2d at 565. King also held, however, that a person is not
required to take the risk of serious surgical operation and hazard his
or her life for the benefit of a wrongdoer, and failure to do so cannot
be used to reduce the recovery.
1–16
DAMAGES GENERALLY
§1.18
In Love v. Park Lane Medical Center, 737 S.W.2d 720 (Mo. banc
1987), the Court held that it was appropriate to express mitigation of
damages in jury instructions as a percentage of fault, which reduced
the plaintiff’s recoverable damages.
Whether a defendant in a personal injury action is entitled to reduce
the plaintiff’s damages because of backpay awards depends on whether
the plaintiff received compensation from the employer for the period
of disability and the character of the compensation. Aaron v.
Johnston, 794 S.W.2d 724, 726 (Mo. App. W.D. 1990). Aaron holds
that, if the payment was for services currently rendered, the defendant
is entitled to the reduction, but if the continued pay is gratuitous or is
compensation for sick leave or annual leave, the defendant is not
entitled to mitigation under the collateral source rule.
C. (§1.17) Property Damages
A property owner has the duty to make repairs to the property to
reduce the damage as much as possible before reimbursement is
sought from a wrongdoer. Stallman v. Hill, 510 S.W.2d 796, 799
(Mo. App. W.D. 1974). A landowner who is prevented from planting
the crop contemplated should not allow a field to lie idle if it is
possible and practical to plant another crop. Sullivan v. Winer,
307 S.W.2d 704, 708 (Mo. App. E.D. 1957). As such, the damages will
be reduced by the amount of profit the plaintiff could have realized on
another crop that could have been planted instead. Id. It is the
property owner’s duty to minimize damages as far as reasonably
possible. Gerst v. Flinn, 615 S.W.2d 628, 631 (Mo. App. E.D. 1981).
But, the rule of mitigation bars recovery only of those damages that
reasonable precaution could have avoided when the means to
mitigate were reasonably known to the plaintiff. Fletcher v. City of
Independence, 708 S.W.2d 158, 175 (Mo. App. W.D. 1986).
D. (§1.18) Contracts
As a general rule, a person damaged by a breach of contract must
make reasonable efforts to minimize the damages. A.G. Edwards &
Sons, Inc. v. Drew, 978 S.W.2d 386, 391 (Mo. App. E.D. 1998). For
example, in a case involving specific performance of a contract to
purchase land, a vendee may not permit the purchase sum to remain
unproductive; the vendee must minimize the interest loss by
depositing the amount of the purchase price in an interest-bearing
account so that any interest earned will be credited to the interest
recovery. Arnold v. Smith, 436 S.W.2d 719, 724 (Mo. 1969).
1–17
§1.19
DAMAGES GENERALLY
E. (§1.19) Employment
The rule of avoidable consequences also applies to employment
relationships, permitting the employer to reduce damages recoverable
by a wrongfully discharged employee by whatever the employee has
earned or by reasonable diligence could have earned during the
period of wrongful discharge. Wolf v. Mo. State Training Sch. for
Boys, 517 S.W.2d 138 (Mo. banc 1974). Wolf also held that, in the
absence of a constitutional, charter, or statutory provision that
unmistakably dictates a contrary result, the rule applies to civil
service and other public employees. A plaintiff wrongfully enjoined
from certain employment must attempt to mitigate the damages by
seeking other employment during the period in which the plaintiff
was enjoined. Id.; Economy Gas Co. v. Bradley, 472 S.W.2d 878, 881
(Mo. App. S.D. 1971). Improperly removed public officials have a duty
to take reasonable steps to mitigate damages by doing what they can
to earn income during the time they would otherwise be attending to
their public duties. Edwards v. Schoemehl, 765 S.W.2d 607, 610
(Mo. banc 1989).
When a person who is wrongfully enjoined from certain employment
fails to minimize the resulting damages, damages will not be allowed
for such loss. Economy Gas, 472 S.W.2d at 881. Those sums that the
respondent has earned or could have earned while deprived of
employment will be offset against compensation determined to be
due. Davis v. Human Dev. Corp., 705 S.W.2d 540, 544 (Mo. App. E.D.
1985); Pollard v. Bd. of Educ. Reorganized Sch. Dist. No. III, Platte
Cnty., 533 S.W.2d 667, 671 (Mo. App. W.D. 1976).
In Wolf, 517 S.W.2d 138, the Court also held that the attorney fees
and expenses the employee incurred to achieve reinstatement should
be subtracted from the earnings he received from substitute
employment to mitigate the backpay. This holding was overruled by
McGhee v. Dixon, 973 S.W.2d 847, 849–50 (Mo. banc 1998), based on
§ 536.087, now RSMo 2000, which authorizes the recovery of attorney
fees and expenses in certain agency proceedings.
F. (§1.20) Landlord and Tenant
Under Missouri law, a residential landlord has three options when a
tenant defaults on a lease. One of these options requires the landlord
to:
1–18
DAMAGES GENERALLY
§1.22

notify the tenant of the landlord’s intent to resume possession
of the premises; and

attempt to relet the premises to mitigate any damages.
Blue Ridge Ctr. Ltd. P’ship v. Zadeh, 943 S.W.2d 357 (Mo. App. W.D.
1997). Although a residential landlord usually does not have a duty to
mitigate damages, a landlord that opts to resume possession and
notifies the tenant of the intention to relet the premises has
voluntarily assumed a duty to mitigate. JCBC, L.L.C. v. Rollstock,
Inc., 22 S.W.3d 197, 200 (Mo. App. W.D. 2000). Once the landlord
assumes the duty to mitigate, its attempts must be reasonable. Id. at
201. The tenant bears the burden of proving that the landlord did not
make reasonable attempts to mitigate. Id.
G. (§1.21) Extent of Bar
A failure to mitigate damages will not bar a recovery but will only
prevent the recovery of damages that might have been avoided by
reasonable efforts on the plaintiff’s part. See:

Faire v. Burke, 252 S.W.2d 289, 293 (Mo. 1952)

Fletcher v. City of Independence, 708 S.W.2d 158, 174
(Mo. App. W.D. 1986)

Whitehorn v. Dickerson, 419 S.W.2d 713, 714 (Mo. App. S.D.
1967)

Cline v. City of St. Joseph, 245 S.W.2d 695, 702 (Mo. App.
W.D. 1952)
IV.
Collateral Source Rule
A. (§1.22) General
Under the collateral source rule, wrongdoers are not entitled to have
damages for which they are liable reduced by proving that a plaintiff
has received or will receive compensation or indemnity for the loss
from a collateral source that is wholly independent of the wrongdoer.
Stated more succinctly, the wrongdoer may not be benefited by
collateral payments made to the person wronged. See:
1–19
§1.23
DAMAGES GENERALLY

Iseminger v. Holden, 544 S.W.2d 550, 552 (Mo. banc 1976)

Overton v. United States, 619 F.2d 1299, 1306 (8th Cir. 1980)

Hagedorn v. Adams, 854 S.W.2d 470, 476 (Mo. App. W.D.
1993)

Beck v. Edison Bros. Stores, Inc., 657 S.W.2d 326, 331
(Mo. App. E.D. 1983)

Blessing v. Boy Scouts of Am., 608 S.W.2d 484, 488 (Mo. App.
W.D. 1980)
The collateral source rule is an exception to the general rule that
damages in tort should be compensatory only; it permits recovery
against a wrongdoer for the full amount of damages even if the
plaintiff is also compensated from a different source if that source is
“wholly independent” of the wrongdoer. McMullin v. Borgers,
806 S.W.2d 724, 731 (Mo. App. E.D. 1991). It also prohibits the
introduction of evidence relating to compensation received from a
collateral source if that evidence is relevant for no other purpose. See,
e.g., Perkins v. Runyan Heating & Cooling Servs., Inc., 933 S.W.2d
837, 840 (Mo. App. W.D. 1996) (evidence of the receipt of workers’
compensation payments or a third-party settlement for an unrelated
injury was relevant when the plaintiff sought lost income for certain
years following the accident). Clearly, though, when the plaintiff
“opens the door” to the issue by injecting the plaintiff’s financial
condition into the case, the defendant is entitled to demonstrate that
other financial assistance was available. See Washington ex rel.
Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995).
B. Actions to Which Applicable
1. (§1.23) Torts
The collateral source rule is well established in the law of damages.
It is an exception to the rule in negligence actions that damages
must be compensatory. Iseminger v. Holden, 544 S.W.2d 550, 552
(Mo. banc 1976). See §1.56 below for a discussion regarding the
amount of medical expenses recoverable in actions for personal
injury and the rebuttable presumption related to these amounts.
1–20
DAMAGES GENERALLY
§1.25
2. (§1.24) Contracts
The collateral source rule applies to contract as well as tort
actions. Prot. Sprinkler Co. v. Lou Charno Studio, Inc.,
888 S.W.2d 422, 424 (Mo. App. W.D. 1994); Hibbs v. Jeep Corp.,
666 S.W.2d 792, 798 (Mo. App. W.D. 1984). See Wells v. Thomas
W. Garland, Inc., 39 S.W.2d 409, 412 (Mo. App. E.D. 1931), a
contract bailment case holding that the bailee—claiming
mitigation of damages by reason of the bailor’s insurance on a
coat—was a stranger to that contract, and the damages could not
be mitigated to the extent of the insurance collected by the
injured party. The right of an injured party to recover from an
uninsured motorist carrier arises from the insurance contract,
rather than in tort, and cannot reduce damages as receipt of
compensation from a collateral source. Elfrink v. Burlington N.
R.R. Co., 845 S.W.2d 607, 615 (Mo. App. E.D. 1992).
In reliance on Hagedorn v. Adams, 854 S.W.2d 470 (Mo. App.
W.D. 1993), a plaintiff argued that, because the collateral source
rule applies to uninsured motorist cases, it ought to apply
to underinsured motorist cases as well. See Smith v. Shaw,
159 S.W.3d 830 (Mo. banc 2005). The court explained that its
holding in Hagedorn was not that the collateral source rule
applied to all uninsured motorist cases but rather that the rule
applies in cases when the uninsured motorist coverage is derived
from an insurance policy for which the insured has paid the
premium. In contrast, Mr. Smith had received $25,000 from an
underinsured motorist policy paid for by Mr. Stark, the owner of
the vehicle in which Mr. Smith was riding as a passenger at the
time of the accident. Thus, because Mr. Smith did not pay the
premiums for this coverage, the collateral source rule did not
apply, and Mr. Smith’s award of damages should have been
reduced by the amount he received from Mr. Stark’s carrier.
3. (§1.25) Other
In an action under the unfair milk sales practices law,
§§ 416.410–416.560, now RSMo 2000, in which reimbursements of
loss were made by a third party but there had been no
assignment of rights, the plaintiff remained the real party in
interest under § 416.455, RSMo 2000, and the defendant could
not escape the consequences of violating the law based on the
payments received or to be received by the plaintiff from the third
party. Collier v. Roth, 434 S.W.2d 502, 506 (Mo. 1968).
1–21
§1.26
DAMAGES GENERALLY
In Mason-Rust v. Laborers’ Int’l Union of N. Am., AFL-CIO,
Local 42, 435 F.2d 939, 945 (8th Cir. 1970), when the Army
reimbursed the plaintiff for all expenditures because of a strike,
the court held that the collateral source rule applied to the
reimbursement payments.
C. Payments to Which Applicable
1. (§1.26) Insurance
Generally, the wrongdoer does not benefit from insurance
payments received by a plaintiff as mitigation of damages. See:

Kickham v. Carter, 335 S.W.2d 83, 90 (Mo. 1960) (there
appears to be no logical reason for a defendant to receive
the benefit for hospitalization payment made by an
organization such as Blue Cross to which the plaintiff had
no doubt made contributions in accordance with a
membership agreement)

Blessing v. Boy Scouts of Am., 608 S.W.2d 484, 489
(Mo. App. W.D. 1980) (evidence showing that an injured
party had received insurance payments was presumed to
be prejudicial upon the concept that a tortfeasor is not
permitted to receive benefit of insurance payments from
another source)

Hibbs v. Jeep Corp., 666 S.W.2d 792, 798 (Mo. App. W.D.
1984) (the doctrine applies to warranty/contract actions)

Baker v. Fortney, 299 S.W.2d 563, 566 (Mo. App. W.D.
1957) (the doctrine applies to compensation that the
collision carrier paid to the plaintiff for part of the
damage)

Wells v. Thomas W. Garland, Inc., 39 S.W.2d 409, 412
(Mo. App. E.D. 1931) (a party who is to be held to
indemnity for a wrong or breach of legal duty cannot ask
that the damages otherwise recoverable from the party be
mitigated to the extent of the insurance collected by the
injured party)
1–22
DAMAGES GENERALLY
§1.28
In Iseminger v. Holden, 544 S.W.2d 550, 553 (Mo. banc 1976), the
Court held that the plaintiff was entitled to recover reasonable
hospital expenses incurred for injuries resulting from the
defendant’s negligence even though these expenses were actually
paid by Blue Cross in response to its contract with the plaintiff.
The Court noted that there would appear to be no logical reason
for the defendant to receive the benefit of hospitalization
payments made by an organization to which the plaintiff had
no doubt made contributions in accordance with a membership
agreement.
2. (§1.27) Unemployment Compensation
Unemployment compensation received by a plaintiff is not a
proper subject of mitigation. Burens v. Wolfe Wear-U-Well Corp.,
158 S.W.2d 175, 179 (Mo. App. W.D. 1942). Burens also held that
a wrongdoer cannot diminish its liability to the extent of such
contributions, and the wrongdoer will not be permitted to benefit
by payments made to the injured person from collateral sources,
whether in compensation or as gratuities. But see §§1.35–1.40,
infra.
3. (§1.28) Workers’ Compensation
A tortfeasor is not permitted to mitigate or reduce damages by
proving that a plaintiff has received indemnity or compensation
for an injury or loss from workers’ compensation benefits.
Sampson v. Mo. Pac. R.R. Co., 560 S.W.2d 573, 584 (Mo. banc
1978); Burrous v. Am. Airlines, Inc., 639 S.W.2d 263, 266
(Mo. App. E.D. 1982). This is because the defendant tortfeasor
did not create or pay for the workers’ compensation payments
received by the plaintiff. See Lockwood v. Schreimann,
933 S.W.2d 856, 861 (Mo. App. W.D. 1996).
In Phillips v. Par Electrical Contractors, 92 S.W.3d 278 (Mo. App.
W.D. 2002), overruled on other grounds by Hampton v. Big Boy
Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003), the court
considered the effect of the collateral source rule on payments
sought from the SIF (Second Injury Fund). Mr. Phillips was a
truck driver who sustained serious injuries when he was involved
in an accident. Id. at 281. Mr. Phillips sought workers’
compensation benefits for his injuries. Initially, an administrative
law judge determined that Mr. Phillips was not an employee but
an independent contractor who was ineligible for workers’
1–23
§1.28
DAMAGES GENERALLY
compensation benefits. Id. The Commission (Labor and Industrial
Relations Commission) reversed this finding and determined that
the SIF was required to pay Mr. Phillips’s medical expenses. Id.
The SIF intervened in the case to oppose the Commission’s ruling
that the SIF was liable for Mr. Phillips’s medical expenses
because the automobile liability insurer had paid his medical
expenses, and payment by the SIF would result in a “windfall for
Mr. Phillips.” Id. In issuing its decision, the Commission relied on
the holding in Wilmeth v. TMI, Inc., 26 S.W.3d 476 (Mo. App. S.D.
2000), overruled on other grounds by Hampton, 121 S.W.3d at
223, to award Mr. Phillips his medical expenses from the SIF. In
Wilmeth, the court had held that § 287.270, RSMo 2000,
precluded the court from considering a collateral source payment
to reduce an award from the SIF because § 287.270 states that
benefits from other sources cannot be considered in awarding
workers’ compensation benefits. The Western District Court of
Appeals, however, refused to follow Wilmeth as advocated by the
Commission and instead considered the purpose behind the SIF.
Section 287.220.5, RSMo 2000 (emphasis added), which sets forth
the purpose of the SIF, states, in part, as follows:
If an employer fails to insure or self-insure as required in section
287.280, funds from the second injury fund may be withdrawn to cover
the fair, reasonable, and necessary expenses to cure and relieve the effects
of the injury or disability of an injured employee in the employ of an
uninsured employer . . . .
Because no one disputed that Mr. Phillips’s past medical expenses
had been paid by the automobile liability insurer, the court
reasoned that a payment from the SIF was not necessary because
it would not be designed to “cure and relieve the effects of the
injury or disability of an injured employee.” Phillips, 92 S.W.3d at
286. The Western District agreed with the reasoning of the
Eastern District Court of Appeals in Mann v. Varney
Construction, 23 S.W.3d 231, 233 (Mo. App. E.D. 2000), overruled
on other grounds by Hampton, 121 S.W.3d at 223, based on
similar facts (the court held that the SIF was only liable for the
portion of medical expenses not paid by Medicaid).
In Leach v. Board of Police Commissioners of Kansas City,
118 S.W.3d 646 (Mo. App. W.D. 2003), the court further explained
how the collateral source rule impacts the SIF. In Leach, the
dependents of a deceased police officer, who also worked as a
security guard, sought to recover from the SIF even though they
were already entitled to collect workers’ compensation benefits
1–24
DAMAGES GENERALLY
§1.29
and the deceased employee’s pension from the St. Louis Board of
Police Commissioners. Id. at 653. The SIF relied on Phillips,
92 S.W.3d 278, and Mann, 23 S.W.3d 231, to assert that the
dependents were precluded from recovering funds from the SIF
because they had or would be reimbursed through the St. Louis
Board of Police Commissioners’ pension and workers’ compensation
benefits.
In Phillips, 92 S.W.3d 278, the employer’s automobile insurer had
paid the claimant’s medical expenses, and in Mann, 23 S.W.3d
231, Medicaid had paid the claimant’s medical expenses before
each of them sought to recover from the SIF. Neither Phillips nor
Mann was permitted to recover from the SIF because § 287.220.5
limits the obligation of the SIF to pay only “the fair, reasonable,
and necessary expenses to cure and relieve the effects of the
injury or disability of an injured employee in the employ of an
uninsured employer.” This has been interpreted to mean that the
statute only requires reimbursement of actual expenses. See
Leach, 118 S.W.3d at 653. Although the courts acknowledged that
§ 287.270 provides that an employee’s compensation from another
source is not to be considered in determining the compensation
that is due the employee under workers’ compensation law, the
courts found that the language in § 287.220.5 limited the liability
of the SIF. Id. The court in Leach also rejected the SIF’s reliance
on Phillips and Mann because § 287.220.5 expressly applies to an
injury or disability and not a death.
For further discussion of the amounts payable by the SIF for
medical expenses, see Ellis v. Missouri State Treasurer,
302 S.W.3d 217 (Mo. App. S.D. 2009), and Skinner v. Morgan,
306 S.W.3d 149 (Mo. App. S.D. 2010).
4. (§1.29) Sick Leave
Payments made to a plaintiff for accumulated sick leave provided
for in an employment contract are covered by the collateral source
rule. East v. Landmark Cent. Bank & Trust Co., 585 S.W.2d 222,
226 (Mo. App. E.D. 1979); Siemes v. Englehart, 346 S.W.2d 560,
563-64 (Mo. App. E.D. 1961). Siemes also held that the amounts
received for accumulated sick leave were not wages in the strict
sense of that term but were disability payments that the plaintiff
had earned under his contract of employment by rendering
service before the date of disability and were analogous to sums
paid under a policy of accident insurance. A “person whose
1–25
§1.30
DAMAGES GENERALLY
tortious act caused the injury should not, by reason of [such]
payments, be relieved of liability for earnings lost by the injured
person as a result of [the] injury.” Siemes, 346 S.W.2d at 564.
5. (§1.30) Gratuities
Contributions received by an injured party as a direct result of
being injured, such as charitable donations, which would include
relief subsistence, are not to be taken into consideration in
assessing damages. Joshmer v. Fred Weber Contractors, Inc.,
294 S.W.2d 576, 586 (Mo. App. E.D. 1956). See also Aaron v.
Johnston, 794 S.W.2d 724, 727 (Mo. App. W.D. 1990), which held
that employment compensation received as a gratuity was not to
be taken into consideration in assessing the defendant’s damages.
The courts are split, however, on whether gratuitous services
rendered to a plaintiff as a result of the plaintiff’s special status
are barred by the collateral source rule. See Washington ex rel.
Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995).
6. (§1.31) Income Taxes
The exemption of damage awards from federal and state taxation
may not be considered in awarding damages in actions predicated
on Missouri law. Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83, 96
(Mo. banc 1985); Tennis v. Gen. Motors Corp., 625 S.W.2d 218
(Mo. App. S.D. 1981). In cases tried under the FELA (Federal
Employers’ Liability Act), 45 U.S.C. §§ 51 et seq., evidence
concerning the taxability of damage awards is considered
relevant. Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490 (1980);
Kenton; Tennis.
7. (§1.32) Remarriage
Remarriage of a wrongful death plaintiff is inadmissible to
mitigate damages by showing that the plaintiff has a new spouse
who may be providing income or household support. See:

Elmahdi v. Ethridge, 987 S.W.2d 366, 369 (Mo. App. W.D.
1999)

Johnson v. Pac. Intermountain Express Co., 662 S.W.2d
237, 239 (Mo. banc 1983)

Davis v. Springfield Hosp., 218 S.W. 696, 700 (Mo. App.
S.D. 1920)
1–26
DAMAGES GENERALLY
§1.34
The defendant may be entitled to mention the plaintiff’s
remarriage if it is necessary to correct a misimpression created by
the plaintiff, but the defendant cannot mention details related to
the spouse’s income or services. Call v. Heard, 925 S.W.2d 840,
852 (Mo. banc 1996).
8. (§1.33) Railroad Retirement Act
The collateral source rule applies to payments made under the
Railroad Retirement Act of 1974, 45 U.S.C. §§ 231–231u, and
evidence of these payments is inadmissible in actions brought
against the railroad under the FELA. Melton v. Ill. Cent. Gulf
R.R. Co., 763 S.W.2d 321 (Mo. App. E.D. 1988).
9. (§1.34) Free Public Services
The collateral source rule can be applied to limit the introduction
of evidence relating to free public assistance that is available to
the plaintiff. See Washington ex rel. Washington v. Barnes Hosp.,
897 S.W.2d 611 (Mo. banc 1995). Missouri courts have found
evidence relating to certain governmental benefits to be subject to
the collateral source rule. See:

Cornelius v. Gipe, 625 S.W.2d 880, 882 (Mo. App. W.D.
1981) (Social Security, Medicare, and Medicaid)

Hood v. Heppler, 503 S.W.2d 452, 454–55 (Mo. App. E.D.
1973) (veterans’ benefits)

Weeks-Maxwell Constr. Co. v. Belger Cartage Serv., Inc.,
409 S.W.2d 792, 796 (Mo. App. W.D. 1966) (Social
Security)
The Supreme Court of Missouri, however, found that evidence
relating to the availability of free public school benefits to a braindamaged child was not subject to the collateral source rule.
Washington, 897 S.W.2d 611. The Court reasoned that the
plaintiff did not purchase, work for, or otherwise contract for the
free services, but was entitled to them by law. Id.
1–27
§1.35
DAMAGES GENERALLY
D. Exceptions
1. (§1.35) Payments by or for Tortfeasor
When the collateral source is the defendant, the collateral source
rule does not apply. In Hamilton v. Slover, 440 S.W.2d 947, 958
(Mo. 1969), overruled on other grounds by Stover v. Patrick,
459 S.W.2d 393 (Mo. banc 1970), medical payments made on the
plaintiff’s behalf in accordance with a medical insurance contract
that the defendant purchased were held properly credited or
deducted from a judgment in the plaintiff’s favor. The Court
further noted that, under those circumstances, no one gets a
windfall. If a recovery were allowed, the plaintiff would receive a
double recovery and the defendant would be liable twice for the
same item of damage.
In Overton v. United States, 619 F.2d 1299, 1307 (8th Cir. 1980),
the court held that a plaintiff’s Medicare benefits were not in the
nature of insurance to her when she had made no contribution
toward Part A of Medicare in an action under the FTCA (Federal
Tort Claims Act), 60 Stat. 842. Section 490.715, RSMo Supp.
2011, provides that, if a defendant or the defendant’s carrier or
authorized representative pays a plaintiff’s special damages
before trial, the defendant may introduce into evidence the fact
that the bills were paid by someone other than the plaintiff
without identifying the payor. By introducing this evidence, the
defendant waives the right to a credit against the judgment in the
amount of the payment.
Under § 490.710, RSMo 2000, advance payments made under a
liability policy and clearly predicated on possible tort liability are
to be deducted from any final judgment rendered in favor of an
injured person. Taylor v. Yellow Cab Co., 548 S.W.2d 528
(Mo. banc 1977). Payments made by the defendant’s parent
company under a plan to provide immediate medical and salary
continuation payments to injured employees of all subsidiary
companies qualify under 45 U.S.C. § 55 for setoff against a verdict
received by the plaintiff under FELA. Anglim v. Mo. Pac. R.R.
Co., 832 S.W.2d 298, 309–10 (Mo. banc 1992).
1–28
DAMAGES GENERALLY
§1.37
2. (§1.36) Claimant’s Insurance
If the plaintiff is under contractual obligation to the defendant to
carry insurance on property to the mutual benefit of the plaintiff
and the defendant and the plaintiff collects full compensation for
its loss from the insurance, to the extent of the plaintiff’s
stipulated obligation to insure against loss, the insurance
stipulated had the effect of satisfying the plaintiff’s claim for
negligence. Rock Springs Realty, Inc. v. Waid, 392 S.W.2d 270,
277 (Mo. 1965); Monsanto Chem. Co. v. Am. Bitumuls Co.,
249 S.W.2d 428, 431 (Mo. 1952). In Kaelin v. Nuelle, 537 S.W.2d
226, 237 (Mo. App. E.D. 1976), the court held that there is no
reason for distinguishing payments made under the provisions of
an uninsured motorist policy from other instances when the
collateral source rule has been brought into play; in such a
situation, the collateral source rule applies.
3. (§1.37) Tortfeasor’s Insurance
When medical payments made to a plaintiff were purchased as a
part of the defendant’s liability insurance contract and were made
under that contract, those payments may be shown to mitigate
recovery to prevent a double recovery of the same item of damage.
Hamilton v. Slover, 440 S.W.2d 947 (Mo. 1969) overruled on other
grounds by Stover v. Patrick, 459 S.W.2d 393 (Mo. banc 1970);
Webb v. State Farm Mut. Auto. Ins. Co., 479 S.W.2d 148, 154
(Mo. App. W.D. 1972). In Hamilton, the Court also held that,
when the collateral source is the defendant, to do otherwise would
be a double recovery by the plaintiff with the defendant paying
twice for the same item of damage.
The same reasoning was used in Overton v. United States,
619 F.2d 1299 (8th Cir. 1980), in which payments made under
Medicare’s Part A Trust Fund were held to have been properly
deducted from a damage award under the FTCA. In that case,
both the plaintiff and her husband were over 65 years of age
when Medicare was passed, and the plaintiff had not contributed
to the Fund, which consisted of appropriations from general
revenues. The court held, however, that when an FTCA plaintiff
shows that, because of contributions to the Trust Fund, the
plaintiff’s benefits would be in the nature of insurance, the
collateral source rule justifies a “double recovery” notwithstanding
the connection between the Social Security fund in question and
the government’s general revenue fund. Section 490.710, RSMo
1–29
§1.38
DAMAGES GENERALLY
2000, applies only to payments predicated on possible tort
liability; it does not apply to payments made under the
contractual obligation to pay medical expenses under Insurance
Policy Medical Payments Coverage. Wegeng v. Flowers,
753 S.W.2d 306, 309 (Mo. App. W.D. 1988).
But see Tatum v. Van Liner Insurance Co. of Fenton, Missouri,
104 F.3d 223, 225 (8th Cir. 1997), in which the Eighth Circuit held
that Missouri’s collateral source rule does not bar an uninsured
motorist carrier from claiming a setoff to reduce uninsured
motorist benefits by the amount of a settlement with the
tortfeasor. Following an accident, the plaintiff, who was a
passenger, sued the tortfeasor and its carrier and in a subsequent
action sued the uninsured motorist carrier for the owner of the
truck in which he was riding at the time of the accident. Id. at
224. The uninsured motorist policy at issue contained a provision
stating that all sums payable should be reduced by the amount
paid by anyone who was legally responsible. Id. In rejecting the
plaintiff’s collateral source argument, the court explained that the
plaintiff must have contributed to the fund he claimed as a
collateral source. Id. at 225. When the plaintiff had incurred
no expense, obligation, or liability in obtaining the services for
which he sought compensation, the collateral source rule was
inapplicable. Id.
4. (§1.38) Treatment by Tortfeasor
When the plaintiff was injured as a result of the defendant city’s
negligence but requested and received medical treatment from
the city’s own hospital, for which no charge was made, the city
was relieved of its obligation to pay money damages for that
particular element of recovery. Kansas City v. Martin, 391 S.W.2d
608, 613 (Mo. App. W.D. 1965).
5. (§1.39) Payments by Tortfeasor
Payments made from the defendant to the plaintiff under
§ 490.710, RSMo 2000, should be made a matter of record in the
trial court before the judge alone, who must then reduce any
verdict by the amount of these payments and enter judgment in
the reduced sum. Taylor v. Yellow Cab Co., 548 S.W.2d 528, 533
(Mo. banc 1977); Rook v. John F. Oliver Trucking Co., 556 S.W.2d
200, 202 (Mo. App. E.D. 1977). In Romanus v. American Triad
Land Co., 675 S.W.2d 122, 126 (Mo. App. W.D. 1984), the court
1–30
DAMAGES GENERALLY
§1.40
held that the fact and amount of a partial settlement between the
parties are essential ingredients to be considered in determining
the award of damages.
6. (§1.40) Payments by Joint Tortfeasor
Payments made by a joint tortfeasor to the plaintiff should be
deducted from the plaintiff’s total damages. See Haley v. Byers
Transportation Co., 394 S.W.2d 412, 416 (Mo. 1965), which held
that the jury should be instructed to credit against or deduct from
the plaintiff’s total damages the sum received from the joint
tortfeasor. See also Hampton v. Safeway Sanitation Services, Inc.,
725 S.W.2d 605, 610–11 (Mo. App. E.D. 1987), which held that,
under § 537.060, now RSMo 2000, when a plaintiff settles with
one of two or more alleged joint tortfeasors and agrees to a
covenant not to sue, and the settlement is not in excess of a
subsequent jury verdict, the amount of the plaintiff’s claim must
be reduced by the amount of the settlement. When such a
settlement exceeds the verdict, the judgment against the
nonsettling tortfeasors is satisfied.
Although a release of one tortfeasor does not discharge other
tortfeasors unless the terms of the agreement so provide, the
other tortfeasors have a right of offset or reduction of any claim
against them to the extent of the settlement and release of the
other tortfeasor. Elsie v. Firemaster Apparatus, 759 S.W.2d 305,
307 (Mo. App. E.D. 1988); Brickner v. Normandy Osteopathic
Hosp., Inc., 746 S.W.2d 108 (Mo. App. E.D. 1988). The proper
method for calculating damages when the plaintiff has received
partial compensation from a joint tortfeasor is for the trial court
to initially deduct from the total damages the amount received
from the settling defendant and then apportion the damages
between the plaintiff and the remaining defendant in proportion
to their respective percentages of fault. Jensen v. ARA Servs.,
Inc., 736 S.W.2d 374 (Mo. banc 1987). For a further discussion of
this issue, see §22.22 of this deskbook.
1–31
§1.41
DAMAGES GENERALLY
V.
Burden of Proof
A. (§1.41) General
When damages are awarded, they must be actual and real, not
conjectural or speculative. In Couch v. Kansas City Southern Ry. Co.,
158 S.W. 347, 348 (Mo. 1913), this was held to be only an abstract
rule of law, a general guide to be followed as long as it promotes
justice, and to be put aside when it leads in the opposite direction.
Pecuniary loss, however, must be determinate and must be proved
with reasonable certainty, rather than left to speculation. See:

Warner v. Sw. Bell Tel. Co., 428 S.W.2d 596, 604 (Mo. 1968)

LaBore v. Clark Oil & Ref. Corp., 524 S.W.2d 183, 185
(Mo. App. W.D. 1975)

Thienes v. Harlin Fruit Co., 499 S.W.2d 223, 230 (Mo. App.
S.D. 1973)

Rotermund v. Basic Materials Co., 558 S.W.2d 688, 691
(Mo. App. E.D. 1977)
Speculative results are not proper elements of damages. Wise v.
Sands, 739 S.W.2d 731, 734 (Mo. App. S.D. 1987). In Hernandez v.
Westoak Realty & Investment, Inc., 771 S.W.2d 876, 883 (Mo. App.
E.D. 1989), it was held that proof of damages accruing some four
years after an alleged breach of contract sensibly can be characterized
as “too speculative.”
The Supreme Court of Missouri has held that the party who bears the
burden of proof on damages may not withhold all argument on
damages in its initial closing argument and then make the argument
in the final reserved portion of the argument so that the defendant
has no opportunity to respond. Tune v. Synergy Gas Corp., 883 S.W.2d
10, 17 (Mo. banc 1994).
B. (§1.42) Causation
The burden is on the plaintiff in a personal injury action to show by
substantial evidence the causal connection between the alleged
injuries and the negligence of the defendant. See:
1–32
DAMAGES GENERALLY
§1.44

Skadal v. Brown, 351 S.W.2d 684, 688 (Mo. 1961)

Holmes v. Gamewell, 712 S.W.2d 34, 37 (Mo. App. E.D. 1986)

Condos v. Associated Transps., Inc., 453 S.W.2d 682, 691
(Mo. App. E.D. 1970)

Moore v. Glasgow, 366 S.W.2d 475, 483 (Mo. App. S.D. 1963)

Franklin v. Kansas City Pub. Serv. Co., 186 S.W.2d 546, 549
(Mo. App. W.D. 1945)
C. (§1.43) Injury
The burden of proof is on the plaintiff to prove the injury and its
extent. Homeyer v. Wyandotte Chem. Corp., 421 S.W.2d 306, 310
(Mo. 1967). The plaintiff must establish by a preponderance of the
evidence:

that the plaintiff sustained personal injuries;

the nature and extent of the injuries inflicted;

special items of damage;

the nature and extent of special damages; and

the pecuniary loss suffered.
Skadal v. Brown, 351 S.W.2d 684, 688 (Mo. 1961).
In Phegley v. Graham, 215 S.W.2d 499, 505 (Mo. 1948), the plaintiff
was denied recovery when there was no clear and positive evidence of
record that, after the plaintiff was in a physical condition to work, he
was unable to secure employment because of his injuries or was
prevented from engaging in work he had done before the injuries or in
some more lucrative vocation.
D. (§1.44) Pecuniary Damages
The burden of proving pecuniary damages and proving that they
resulted from the wrongful act of a third party is on the person
claiming the damages. Adkison v. Hannah, 475 S.W.2d 39, 44
(Mo. 1972); Bomson v. Electra Mfg. Co., 402 S.W.2d 7, 10 (Mo. App.
W.D. 1966). A presumption of at least nominal damage follows from
proof of a legal wrong, but the amount and items of pecuniary damage
are not presumed; they must be proved. Weaver v. Jordan, 362 S.W.2d
1–33
§1.44
DAMAGES GENERALLY
66, 75 (Mo. App. S.D. 1962). If there is no evidence of the extent of the
pecuniary loss, no substantial damages can be recovered, at least
when the elements of damage are susceptible of pecuniary
measurement. Id. It is settled law that, once the fact of damage has
been established, the courts are allowed considerable leeway in
arriving at the amount of damages. Collier v. Roth, 434 S.W.2d 502,
505 (Mo. 1968) (citing Bigelow v. RKO Radio Pictures, 327 U.S. 251
(1946)).
When the tort is of such a nature as to preclude the ascertainment of
the amount of damages with certainty, “[w]hile the damages may not
be determined by mere speculation or guess, it will be enough if the
evidence show[s] the extent of the damages as a matter of just and
reasonable inference, although the result be only approximate.” Story
Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562–
63 (1931); Mason-Rust v. Laborers’ Int’l Union of N. Am., AFL-CIO,
Local 42, 435 F.2d 939 (8th Cir. 1970). In these circumstances, juries
are allowed to act on probable and inferential, as well as direct and
positive, proof. Bigelow, 327 U.S. 251; Collier, 434 S.W.2d 502.
When it is certain that damage resulted, even if the damages cannot
be measured exactly, “the law only requires that the evidence, with
such certainty as [it] will permit, lay a foundation to enable the jury
to make a fair and reasonable estimate.” Weindel v. DeSoto Rural
Fire Prot. Ass’n, Inc., 765 S.W.2d 712, 714 (Mo. App. E.D. 1989),
abrogated on other grounds by Purcell Tire & Rubber Co. v. Executive
Beechcraft, Inc., 59 S.W.3d 505 (Mo. banc 2001). The Weindel court
explained that a plaintiff only needs to produce the best evidence
available to afford a reasonable basis for estimating the damages.
The party claiming damages for breach of contract bears the burden
of proving the existence and amount of damages with reasonable
certainty. Am. Laminates, Inc. v. J.S. Latta Co., 980 S.W.2d 12, 15
(Mo. App. W.D. 1998). In doing so, the plaintiff must present a
rational estimate of the damages incurred without resorting to
speculation. Id.
Estimates of time spent by employees in repairing and improving
property are proper elements of damages when they are the best
measure available. Iota Mgmt. Corp. v. Boulevard Inv. Co., 731 S.W.2d
399, 418 (Mo. App. E.D. 1987). If the damage estimate is insufficient
to provide a basis for calculation of actual damages, the plaintiff is
entitled to nominal damages. Farer v. Benton, 740 S.W.2d 676
(Mo. App. E.D. 1987). The value of the property that has been
1–34
DAMAGES GENERALLY
§1.45
damaged or destroyed may be established by testimony of the owner
or operator; invoices or other documents are not required to establish
the amount of damages. Id.
E. (§1.45) Punitive Damages
In Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996),
the Supreme Court of Missouri held that a plaintiff bears the burden
of proving entitlement to punitive damages with “clear and
convincing” evidence that the defendant acted in reckless disregard of
the safety or rights of others. MAI 3.01 [1998 Revision] has been
amended to reflect this change in the burden of proof. The Court
ordered that the new higher burden of proof be applied in all trials
beginning after February 1, 1997. The Court reasoned that punitive
damages are awarded to punish and deter similar conduct, and
therefore, the remedy is extraordinary and should only be applied
sparingly. Rodriguez, 936 S.W.2d at 110.
Whether there is sufficient evidence to support an award of punitive
damages is a question of law. Gilliland v. Mo. Athletic Club,
273 S.W.3d 516, 520 (Mo. banc 2009). Proof offered to support the
underlying claim and an award of punitive damages is not mutually
exclusive. Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 870
(Mo. App. E.D. 2009).
Missouri previously followed the rule that a party may discover and
present evidence of the net worth of the defendant when punitive
damages are at issue. Collins v. Hertenstein, 90 S.W.3d 87 (Mo. App.
W.D. 2002). The plaintiff is not required to present evidence of net
worth, but net worth of the defendant is a factor a jury may consider in
awarding punitive damages. Id. at 105–06. In 2005, the legislature
amended the rules relating to the award of punitive damages. In
§ 510.263.8, RSMo Supp. 2011, the legislature limited the plaintiff’s
ability to discover a defendant’s assets until such time that the trial
court determines that “it is more likely than not that the plaintiff will
be able to present a submissible case to the trier of fact on the
plaintiff’s claim of punitive damages.” Id. In addition, in § 510.265.1,
RSMo Supp. 2011, the legislature limited the amount of punitive
damages that can be awarded to “the greater of:
(1) Five hundred thousand dollars; or
(2) Five times the net amount of the judgment awarded to the
plaintiff against the defendant.”
1–35
§1.45
DAMAGES GENERALLY
Id. These limitations do not apply if the state of Missouri is the
plaintiff or if the defendant pleads guilty or is convicted of a crime
arising out of the acts or omissions relied on by a plaintiff to establish
the cause of action. Certain actions involving housing discrimination
are excepted from this limitation as well.
Section 537.675.3, RSMo Supp. 2011, authorizes the state to assert a
lien against 50% of a final judgment for punitive damages in a
personal injury or a wrongful death case. In Hoskins v. Business
Men’s Assurance, 79 S.W.3d 901 (Mo. banc 2002), the defendants
challenged the validity of § 537.675 by asserting that it violated the
excessive fines clause of the Eighth Amendment to the United States
Constitution and the due process and takings clauses of both the
United States and Missouri Constitutions. The Supreme Court of
Missouri held that the statute did not violate the excessive fines
clause or due process and that the defendants failed to adequately
develop their argument under the takings clauses. Thus, the Supreme
Court found no basis for finding that the state’s right to assert a lien
against 50% of a final judgment for punitive damages was invalid.
Punitive damages are only properly submitted in a negligence case if
there is clear and convincing evidence that “at the time of the
negligent act, the defendant knew or had reason to know that there
was a high degree of probability that the action would result in
injury.” See Lewis v. FAG Bearings Corp., 5 S.W.3d 579, 583
(Mo. App. S.D. 1999).
Likewise, punitive damages are only properly submitted in a strict
liability case when there is clear and convincing evidence that the
defendants “placed in commerce an unreasonably dangerous product
with actual knowledge of the product’s defect.” Letz v. Turbomeca
Engine Corp., 975 S.W.2d 155, 164–65 (Mo. App. W.D. 1997). Both
theories require that the defendant “showed a complete indifference
to or conscious disregard for the safety of others.” Id. at 165. The
Supreme Court of Missouri has cautioned that submission of punitive
damages claims to a jury warrants special judicial scrutiny because
the instructional standards for punitive damages are necessarily
general. See Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226, 247–48
(Mo. banc 2001). The conduct must be so egregious that it is
“tantamount to intentional wrongdoing.” See Lopez v. Three Rivers
Elec. Coop., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000). The “clear and
convincing” standard has been interpreted to mean evidence that
“instantly tilts the scales in the affirmative when weighed against
evidence in opposition.” See Lewis, 5 S.W.3d at 582–83.
1–36
DAMAGES GENERALLY
§1.46
In Kaplan v. U.S. Bank, N.A., No. ED 85640, 2005 WL 3041002
(Mo. App. E.D. Nov. 15, 2005) (Kaplan II), transfer ordered
February 28, 2006, the Eastern District of the Court of Appeals
reversed a jury verdict, awarding the plaintiff punitive damages
based on instructional error. In Kaplan v. U.S. Bank, N.A.,
166 S.W.3d 60 (Mo. App. E.D. 2003) (Kaplan I), the appellate court
held that the bank could not be held vicariously liable for the conduct
of its contractor. Because a jury had previously found the bank liable
on a negligence theory as well as respondeat superior for the conduct
of its contractor, there was no way for the appellate court to
determine what amount of punitive damages the jury had assessed
against the bank. As a result, the appellate court remanded for a new
trial on the “issue of punitive damages against the Bank on its direct
negligence.” Id. at 77. On remand, the trial court instructed the jury
that liability for punitive damages had already been determined and
thus only required them to assess the amount of the damages. The
appellate court reversed in Kaplan II, explaining that an award of
punitive damages is essentially a three-step process:
1. The trial court must determine as a matter of law whether
sufficient evidence has been presented to warrant the
submission of punitive damages.
2. The jury must determine whether the defendant should be
liable for punitive damages.
3. If the defendant is liable, the jury assesses the amount of
punitive damages. To assess punitive damages, therefore, it
was necessary for the jury to find that the bank was liable for
punitive damages for its negligent conduct.
Kaplan II, 2005 WL 3041002.
F. (§1.46) Loss of Earnings
Inevitably, there is a degree of speculation in determining a fairly
approximated present-value award compensating the plaintiff for
what the plaintiff would have earned but for an injury. But this
speculation, when based on the use of facts in reasonable
calculations, is not so purely conjectural as to improperly influence a
jury’s damages verdict. Anderson v. Burlington N. R.R. Co.,
700 S.W.2d 469, 477 (Mo. App. E.D. 1985).
1–37
§1.47
DAMAGES GENERALLY
When, however, a plaintiff sought to introduce testimony about his
desire to become an architect and how his injuries prevented him
from performing architectural tasks, the court held that:

the plaintiff was not an architect at the time of the accident
and did not train to become one; and

any evidence concerning his loss of future earnings as an
architect would have been speculative, and its exclusion was
not error.
Lippard v. Houdaille Indus., Inc., 715 S.W.2d 491, 494 (Mo. banc
1986), abrogated on other grounds because of the enactment of
§ 537.765, RSMo 2000 (application of comparative fault principles).
1. (§1.47) Past Earnings
The burden is on the plaintiff to prove loss of past earnings with
some reasonable certainty—i.e., to prove the fact and amount of
loss at least by the best evidence available. Moss v. Mindlin’s,
Inc., 301 S.W.2d 761, 773 (Mo. 1956); Bischoff v. Dodson,
405 S.W.2d 514, 519 (Mo. App. S.D. 1966). The Court in Moss also
held that unexplained, uncorroborated, and undemonstrated loss
of earnings does not constitute substantial probative proof from
which a jury might reasonably find that the plaintiff sustained a
loss of earnings because of a personal injury.
In Hargis v. Sample, 306 S.W.2d 564, 569 (Mo. 1957), the Court
held that, even though a party is not excused from a breach of
contract resulting in damages simply because those damages may
not be established with exact certainty, the amount of estimated
loss of earnings should at least be supported by the best evidence
available. Sides Constr. Co. v. Arcadia Valley R-II Sch. Dist.,
565 S.W.2d 761, 768 (Mo. App. E.D. 1978). In Franklin v. Byers,
706 S.W.2d 230, 232 (Mo. App. W.D. 1986), testimony of “average
earnings” by a commission salesman was held admissible to prove
lost income.
2. (§1.48) Future Earnings
The value of a loss of future earnings may not rest on speculation.
Haley v. Byers Transp. Co., 414 S.W.2d 777, 782 (Mo. 1967). The
burden is on the plaintiff to prove the extent of the disability,
Carnes v. Kansas City S. Ry. Co., 328 S.W.2d 615, 624 (Mo. 1959),
1–38
DAMAGES GENERALLY
§1.49
and that the ability to earn a living has been impaired. Seymour
v. House, 305 S.W.2d 1, 3 (Mo. 1957); Irgang v. Tieman Coal &
Material Co., 46 S.W.2d 919, 921 (Mo. App. E.D. 1932).
To recover for loss of earning capacity, there must be evidence of
an impaired ability to work and evidence of a pecuniary loss
occasioned by it. Without some evidence of what the plaintiff
earned and the extent to which this amount would be reduced in
the future, there is no way that a jury could arrive at an estimate
of the future loss of earnings. Kagan v. St. Louis Pub. Serv. Co.,
334 S.W.2d 379, 382 (Mo. App. E.D. 1960).
In McDonald v. Missouri-Kansas-Texas Railroad Co., 401 S.W.2d
465, 471 (Mo. 1966), evidence that the plaintiff was not
industrially employable and that his condition was permanent,
along with evidence of his earnings before his injury, was held
sufficient to take the issue of loss of future earnings to the jury.
In Thienes v. Harlin Fruit Co., 499 S.W.2d 223, 229–30 (Mo. App.
S.D. 1973), the court held that evidence of what the plaintiff
would have earned by way of Army “longevity,” “Army-wide” pay
increase, completion of Officer Candidate School, second
lieutenant’s pay, first lieutenant’s pay, and captain’s pay was
speculative and should have been excluded.
3. (§1.49) Inference of Future Loss
An inference as to loss of future earnings can be drawn from proof
of permanent injury and total disability. Myers v. Karchmer,
313 S.W.2d 697, 705 (Mo. 1958); Taylor v. Terminal R. Ass’n of
St. Louis, 112 S.W.2d 944, 948 (Mo. App. E.D. 1938). In Belisle v.
Wilson, 313 S.W.2d 11, 17 (Mo. 1958), the plaintiff had been
regularly employed and through injury became totally incapacitated
for some substantial period. The Court’s holding supported an
inference that, except for the injuries, the plaintiff would continue
to earn the amount she was earning immediately before the
injury. Generally speaking, a permanent injury incurred as a
direct result of the defendant’s negligence is sufficient to allow
recovery for the loss of future earnings. Id.
1–39
§1.50
DAMAGES GENERALLY
G. (§1.50) Lost Profits
Anticipated profits are recoverable only when they are made
reasonably certain by proof of actual facts that present data for a
rational estimate of the profits. Yaffe v. Am. Fixture, Inc., 345 S.W.2d
195, 199 (Mo. 1961); Fort Zumwalt Sch. Dist. v. Recklein, 708 S.W.2d
754, 756 (Mo. App. E.D. 1986). The amount of damages cannot be left
to speculation. Sides Constr. Co. v. Arcadia Valley R-II Sch. Dist.,
565 S.W.2d 761, 768 (Mo. App. E.D. 1978). In Tnemec Co. v. North
Kansas City Development Co., 290 S.W.2d 169, 174 (Mo. 1956), the
Court held that the plaintiff did not carry his burden of proof when he
failed to introduce evidence tending to show what factors—such as
outlay for raw materials and other costs, charges, and expenses—may
have made up or contributed to the loss.
While there may be recovery of lost profits that are shown to be the
natural and probable consequence of an act or omission, there is no
recovery when there is uncertainty or speculation as to whether the
loss of profits results from wrong and whether profits would be
derived at all. S. Mo. Bank v. Fogle, 738 S.W.2d 153, 158 (Mo. App.
S.D. 1987). The proof must be sufficient to provide a rational basis for
estimating the amount of loss sustained, and this estimate may not
be based on speculation or conjecture. Gasser v. John Knox Vill.,
761 S.W.2d 728, 731 (Mo. App. W.D. 1988). The plaintiff must produce
evidence that provides an adequate basis for estimating the lost
profits with reasonable certainty and without resorting to speculation.
Manor Square, Inc. v. Heartthrob of Kansas City, Inc., 854 S.W.2d 38,
44 (Mo. App. W.D. 1993); accord Mostly Media, Inc. v. U.S. W.
Commc’ns, 186 F.3d 864 (8th Cir. 1999).
1. (§1.51) Established Business
It is generally held that anticipated profits of a business are too
remote, speculative, and dependent on changing circumstances to
warrant a judgment for their recovery, but anticipated profits of
an established business may be recovered when the plaintiff makes
it reasonably certain by competent proof what they would have
been. See:

Anderson v. Abernathy, 339 S.W.2d 817, 824 (Mo. 1960)

Brown v. McIBS, Inc., 722 S.W.2d 337, 341 (Mo. App. E.D.
1986)

Bischoff v. Dodson, 405 S.W.2d 514, 519 (Mo. App. S.D.
1966)
1–40
DAMAGES GENERALLY
§1.53
When the damages are in the nature of lost profits, all that can be
required is to produce all the relevant facts tending to show the
extent of the damages. A person is not excused for breach of
contract resulting in damages simply because those damages may
not be established with certainty. Gasser v. John Knox Vill.,
761 S.W.2d 728 (Mo. App. W.D. 1988). Proof of the business’s
income and expenses for a reasonable time before its interruption,
with a consequent establishing of the net profits during the
previous period, is indispensable. Lowder v. Mo. Baptist Coll.,
752 S.W.2d 425, 428 (Mo. App. E.D. 1988); All Star Amusement,
Inc. v. Jones, 727 S.W.2d 930, 931 (Mo. App. W.D. 1987).
2. (§1.52) Dependent on Personal Skill
When profits depend on the business skill or ability of a person,
they are generally not recoverable because no method exists to
enable a rational estimate or calculation of profits generated by
the skill or ability. Brown v. McIBS, Inc., 722 S.W.2d 337
(Mo. App. E.D. 1986). But these profits may be recovered if they
are susceptible to proof of actual facts that present data for a
rational estimate of what profits are attributable to a particular
individual for a reasonable previous period. Id.
Loss of business profits are generally not recoverable in a
personal injury action because they are wholly speculative or
because they arise, in whole or in part, from elements other than
the plaintiff’s personal efforts and earnings. Seymour v. House,
305 S.W.2d 1, 4 (Mo. 1957). But this recovery may be allowed
when it is established that the plaintiff’s personal service
predominates and other business elements, such as capital and
labor, are not so material. Id. In Terry v. Houk, 639 S.W.2d 897,
900 (Mo. App. W.D. 1982), the loss was disallowed when there
was no evidence that it was related to the plaintiff’s
incapacitation and no evidence, either descriptive or supportive,
of the value of the plaintiff’s services.
3. (§1.53) Uncertainty
The defendant is not to be excused for a breach of contract
resulting in damages simply because those damages may not be
established with exact certainty, but the amount of the loss
should, in the event of uncertainty, at least be supported by the
best evidence available. Hargis v. Sample, 306 S.W.2d 564, 567
(Mo. 1957); Scullin Steel Co. v. PACCAR, Inc., 708 S.W.2d 756,
1–41
§1.53
DAMAGES GENERALLY
761 (Mo. App. E.D. 1986). In Tnemec Co. v. North Kansas City
Development Co., 290 S.W.2d 169 (Mo. 1956), the Court held that
damages may be recovered for loss of profits because of the breach
of a contract if the evidence is sufficiently certain and definite to
warrant the jury in estimating their extent, but juries will not be
permitted to speculate, without substantial basis, as to what
might be probable or expected profits as an element of damages.
With no evidence as to other work available to engage the
plaintiff’s time or any jobs that the plaintiff could have filled, any
judgment for anticipated profits would have rested entirely on
speculation. Bare v. Kansas City Fed’n of Musicians Local 34-627,
755 S.W.2d 442, 445 (Mo. App. W.D. 1988).
In City of St. Louis v. Riverside Waste Management, L.L.C.,
73 S.W.3d 794 (Mo. App. E.D. 2002), the court reiterated the rule
that lost profits are not recoverable when the award of these
damages is speculative. While the court acknowledged that it is
the fact of damage for lost profits that must be proved with
reasonable certainty and not the amount of damage, when the
fact of damage depends on an event in the future that may or may
not occur, an award of lost profits based on the occurrence of this
future event cannot be allowed. Id. at 797. In Riverside, the
plaintiff’s claim for lost profits depended on the issuance of a
permit by the Department of Natural Resources to expand the use
of the landfill from its existing use. But the plaintiff could not
prove that the Department would have issued the permit. As a
result, the lost profits that would have resulted from this new
permit were improperly based on speculation and would not be
allowed.
Likewise, in Farmer’s Electric Cooperative, Inc. v. Missouri
Department of Corrections, 59 S.W.3d 520, 522 (Mo. banc 2001),
the Supreme Court held that the plaintiff could not recover lost
profits extending beyond the end of the contract. The cooperative
claimed the right to recover damages for projected lost profits
extending beyond the contract period based on the assumption
that it would have the right to continue providing electrical
service beyond the contract period. Id. The Court rejected this
claim, finding that lost profits extending beyond the contract
termination period could not be proved with reasonable certainty
when the recovery of these alleged lost profits depended on an
event in the future that may or may not occur. Id.
1–42
DAMAGES GENERALLY
§1.56
4. (§1.54) Nature of Loss Prevents Proof
When the evidence demonstrates that a substantial pecuniary
loss has occurred, but at the same time it is apparent that the loss
is of a character that defies exact proof, the defendant usually has
reason to foresee this difficulty of proof and should not be allowed
to profit by it. In these cases, it is reasonable to require a lesser
degree of certainty as to the amount of the loss, leaving a greater
degree of discretion to the court or jury. See:

Plas-Chem Corp. v. Solmica, Inc., 434 S.W.2d 522, 526
(Mo. 1968)

Ohlendorf v. Feinstein, 670 S.W.2d 930, 933 (Mo. App.
E.D. 1984)

Ranch Hand Foods, Inc. v. Polar Pak Foods, Inc.,
690 S.W.2d 437, 444 (Mo. App. W.D. 1985) (citing Coach
House of Ward Parkway, Inc. v. Ward Parkway Shops,
Inc., 471 S.W.2d 464, 472 (Mo. 1971))
As tempered by the facts of the case, however, lost profits must be
proven with reasonable certainty. Ranch Hand Foods, 690 S.W.2d
437 (citing Herrington v. Hall, 624 S.W.2d 148, 154 (Mo. App.
W.D. 1981)).
5. (§1.55) Wrongful Conduct Prevents Proof
A person whose wrongful conduct has made the ascertainment of
damages difficult cannot escape liability because damages cannot
be measured with exactness. Ohlendorf v. Feinstein, 670 S.W.2d
930, 933 (Mo. App. E.D. 1984) (citing Coach House of Ward
Parkway, Inc. v. Ward Parkway Shops, Inc., 471 S.W.2d 464, 472
(Mo. 1971)). When the fact of damage caused by a defendant’s
wrongdoing is clear, it is reasonable to require a lesser degree of
certainty as to the amount of loss, leaving a greater degree of
discretion to the jury, subject to the usual supervisory power of
the court. Ohlendorf, 670 S.W.2d 930.
H. (§1.56) Medical Expenses
Section 490.715.5, RSMo Supp. 2011, enacted in 2005, governs the
damages that may be recovered for medical treatment in a personal
injury action. The statute creates a rebuttable presumption that the
1–43
§1.57
DAMAGES GENERALLY
dollar amount paid for medical services represents the value of the
medical treatment rendered. On the motion of any party, the court
may determine whether other evidence of value is admissible such as:

the actual medical bills incurred;

the amount actually paid for the services; or

the amount not paid that the party is obligated to pay in the
event of a recovery.
If the party seeking to rebut the presumption can present substantial
evidence that the value of the medical treatment is an amount
different than the amount paid to the health care provider, the
party’s other evidence of value is admissible at trial. If the
presumption is not rebutted, the only evidence permitted of the value
of the medical treatment is the dollar amount necessary to satisfy the
financial obligation of the health care provider. This allows a plaintiff
to recover more damages for medical expenses than a plaintiff paid
for the services when there is a contracted rate because of insurance
coverage or payment is made through Medicare or Medicaid. In Deck
v. Teasley, 322 S.W.3d 536 (Mo. banc 2010), the Supreme Court of
Missouri held that the plaintiff’s presentation of evidence that the
fair and reasonable value of the services rendered was $27,991 rather
than $9,904, which represented the amount actually paid by
Medicare and supplemental insurance, rebutted the presumption.
Thus, in accordance with the statute, the trial court should have
admitted evidence related to the value of the medical services
provided, thus permitting a jury to award damages for medical
services in excess of the amounts paid for those services.
Showing the mere possibility that medical expenses might be
incurred for future treatment without showing “even a probability
that additional medical expenses would be incurred during . . .
minority” will not support a judgment. Wilson v. Lockwood,
711 S.W.2d 545, 555 (Mo. App. W.D. 1986) (quoting Kramer v. May
Lumber Co., 432 S.W.2d 617, 622 (Mo. App. W.D. 1968)).
I.
(§1.57) Mitigation
The burden of proof on the issue of mitigation of damages is on the
defendant, who must show the injured party’s opportunity to mitigate
reasonable prospective consequences. See:
1–44
DAMAGES GENERALLY
§1.58

Smith v. City of Miner, 761 S.W.2d 259, 260 (Mo. App. E.D.
1988)

Streett v. Laclede-Christy Co., 409 S.W.2d 691, 701 (Mo. 1966)

Shaughnessy v. Mark Twain State Bank, 715 S.W.2d 944, 955
(Mo. App. E.D. 1986)

Fletcher v. City of Independence, 708 S.W.2d 158, 174
(Mo. App. W.D. 1986)
Likewise, when the defendant seeks credit under § 490.710, RSMo
2000, for advance payment of damages for possible tort liability, the
defendant bears the burden of proving that it is entitled to the credit
and the amount of the credit. See Mathis v. Jones Store Co.,
952 S.W.2d 360, 361 (Mo. App. W.D. 1997).
Mitigation of damages in an employee suit is an affirmative defense
that must be pleaded and proved by the employer. Nicklas v. Lincoln
Liberty Life Ins. Co., 518 S.W.2d 106, 111 (Mo. App. W.D. 1974). Once
it is proved that the employee secured other employment, the burden
is on the employee to show the amount of wages earned so that the
damages can be computed. Id. If a defendant wants damages to be
mitigated by the amount of backpay received by the plaintiff during a
period of disability, the burden is on the defendant to show
entitlement. Aaron v. Johnston, 794 S.W.2d 724, 727 (Mo. App. W.D.
1990).
VI.
Choice of Law
A. (§1.58) Tort
Before 1969, Missouri followed the lex loci delicti rule in conflicts
cases whereby all substantive questions were determined according to
the law of the state where a tort occurred, and procedure was
governed by the law of the forum. In Kennedy v. Dixon, 439 S.W.2d
173, 184 (Mo. banc 1969), the Supreme Court of Missouri abandoned
the lex loci delicti rule in favor of the rule set forth in § 145 of the
proposed official draft of Restatement (Second) of Conflict of Laws
(1968), now with minor change, Restatement (Second) of Conflict of
Laws § 145 (1971).
1–45
§1.58
DAMAGES GENERALLY
Section 145 states:
(1)
The rights and liabilities of the parties with respect to an issue in tort
are determined by the local law of the state which, with respect to that
issue, has the most significant relationship to the occurrence and the
parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to
determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and
place of business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered.
These contacts are to be evaluated according to their relative importance
with respect to the particular issue.
The Court in Kennedy, 439 S.W.2d 173, further noted that the new
rule for the choice of law would make the judicial task more difficult
until additional cases have been established, but there will no longer
be a mere mechanical determination of where the wrong occurred.
The Court also noted that there may occasionally be factual
situations in which it will be difficult to establish clearly that a
particular state has the most significant relationship as to a
particular issue or issues. When these situations arise, the trial court
should continue as in the past to apply the substantive law of the
place of the tort. In most and perhaps all cases, however, it should be
possible for the trial court to determine the state with the most
significant contacts and relationship to the issues involved. Of
possible assistance in these respects is Griggs v. Riley, 489 S.W.2d
469 (Mo. App. E.D. 1972). The Griggs court said that Griggs presented
a true conflict-of-laws situation instead of a false one, which the court
said was present in Kennedy, 439 S.W.2d 173, and thus made caselaw
authority out of what was arguably dicta in Kennedy. When two
states have significant contacts and legitimate state interests in
having their own laws applied, Missouri courts “must apply the law of
the state whose interest would be more impaired if its policy were
subordinated to the policy of the other state.” Gilmore v. Attebery,
899 S.W.2d 164, 167 (Mo. App. W.D. 1995). This has been described
as the “governmental interest” test. Id.
In State ex rel. Broglin v. Nangle, 510 S.W.2d 699, 703 (Mo. banc
1974), Texas was the place of:



the accident;
the conduct causing the accident; and
the defendant’s principal business operations.
1–46
DAMAGES GENERALLY
§1.58
Missouri was the widow’s and decedent’s residence and the
defendant’s place of incorporation. At that time, Missouri had a limit
on damages for wrongful death of $50,000, indicating a policy of
protecting defendants from larger judgments; the Texas statute was
silent on the measure of damages recoverable, indicating a state
policy of allowing unrestricted judgments for wrongful deaths. The
Court held that Texas would, therefore, seem to have some interest in
the admonitory effect an unrestricted judgment would have on a
corporation domiciled in that state. But more importantly, Texas had
a definite interest in having the full extent of its laws control
activities, within its borders, of corporations that locate their
principal place of business in that state. Because Texas had the
dominant interest on the issue of damages, it was held that its law
should control.
In Carver v. Schafer, 647 S.W.2d 570, 577 (Mo. App. E.D. 1983)
(limited by enactment of § 537.053, now RSMo Supp. 2011,
eliminating liability of tavern owner for acts of intoxicated patrons in
Missouri), the respondent owned a tavern in Illinois ten miles from
Missouri. A drunken patron of her tavern left the tavern by
automobile and drove into Missouri where his conduct contributed to
the death of the appellant’s decedent. The Court of Appeals for the
Eastern District noted that, since 1969, choice of law in the field of
torts has been resolved by applying the law of the state with the most
significant relationship to the occurrence and the parties. Under the
Illinois Dram Shop Law, appellants could recover damages from the
respondent tavern owner for the wrongful death of the appellant’s
decedent subject to a $20,000 limit on the amount of the recovery,
while Missouri imposed no such limitation.
The court in Carver, 647 S.W.2d 570, held that relevant policies of the
foreign state, Missouri, must be considered. The policies behind
allowing a full measure of recovery are threefold:
1. To provide for the economic well being of the decedent’s
dependents so that they will not become wards of the state
2. To provide funds with which to pay creditors of the decedent
3. To promote the admonitory effects that unrestricted judgments
for wrongful death would have on potentially negligent
defendants
1–47
§1.58
DAMAGES GENERALLY
The court held that the first two policies are relevant. Missouri had
an interest in the compensation of the appellants for their loss
because they are domiciliaries of Missouri, and if they are unable to
support themselves financially, it will be the coffers of the Missouri
treasurer that will be called on to provide them sustenance.
Compensation of the decedent’s creditors is also a relevant policy.
Missouri was the domicile of appellant’s decedent and the place
where he was injured. Any creditors who have not been paid are
likely to be located in Missouri.
The third policy, however, is of slight relevance. The conduct of the
respondent that contributed to the death of the appellant’s decedent
occurred in Illinois, and the tavern owner is apparently a domiciliary
of Illinois. A policy of allowing unrestricted judgments in actions for
deaths occasioned in Missouri will have minimal deterrent effect on
persons and entities that reside and conduct their business affairs
outside this state. The court concluded that Missouri had the
dominant interest based on consideration of all three policies and
held that Missouri law controlled.
In Nelson v. Hall, 684 S.W.2d 350, 359–60 (Mo. App. W.D. 1984), the
operators of both vehicles involved in a collision on a Colorado
highway, the decedent, and the plaintiff/survivors were all Missouri
domiciliaries. The Court of Appeals for the Western District held that
the choice-of-law analysis that the Restatement (Second) of Conflict of
Laws § 145 (1971) “promulgates and our jurisprudence adopts weighs
not a tally of contacts simpliciter, but ‘their relative importance with
respect to the particular issue.’” Thus, it is not the number of contacts
that determines the choice of law but which state has the most
significant relationship to the occurrence and parties and so is
entitled to have its law determine the particular issue. This method
involves an accommodation of state interests in conflict and not an
assession to a perfunctory comparison of numbers of contacts.
The choice of law derives from:

precisely formulating the issue presented;

determining which states have legitimate interests in that issue;

identifying each of those interests;

deciding which state’s interests are paramount; and

applying the dispositive law of that state to resolve the
specific issues presented.
1–48
DAMAGES GENERALLY
§1.59
The court held that, on remand, the plaintiffs may amend their
pleading to assert that, as to any particular issue, the state of
Missouri enjoys the most significant contacts and relationship with
the occurrence and the parties and therefore should determine that
issue. See also Glasscock v. Miller, 720 S.W.2d 771 (Mo. App. S.D.
1986), decided on another issue, but citing Nelson, 684 S.W.2d 350,
with approval.
B. (§1.59) Contract
State Farm Mutual Automobile Insurance Co. v. MFA Mutual
Insurance Co., 671 S.W.2d 276, 276–77 (Mo. banc 1984), involved
uninsured motorists’ coverage, contractual provisions mandated by
Missouri statute. The Court held that contract and tort analysis yield
the same result under Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc
1969). The Court noted that the public policy underlying the statute
is strong and that it would be strange if contract obligations imposed
by law would change whenever a state line is crossed.
In Brown v. Brown, 678 S.W.2d 831, 833 (Mo. App. E.D. 1984), the
court held that, in a choice-of-law situation dealing with contracts,
Missouri employs the criteria contained in Restatement (Second) of
Conflict of Laws § 188 (1971) to determine if Missouri law or that of a
sister state applies. The court held that the contacts to be weighed
and evaluated are:

the place of contracting;

the place of negotiation of the contract;

the place of performance;

the location of the subject matter of the contract; and

the domicile, residence, nationality, place of incorporation,
and place of business of the parties.
Missouri courts generally enforce a choice-of-law provision included
in a contract unless the application of the law is contrary to a
fundamental policy of the state of Missouri. See:

Block Fin. Corp. v. Am. Online, Inc., 148 S.W.3d 878, 884
(Mo. App. W.D. 2004)
1–49
§1.59
DAMAGES GENERALLY

Group Health Plan, Inc. v. BJC Health Sys., Inc., 30 S.W.3d
198 (Mo. App. E.D. 2000)

Rheem Mfg. Co. v. Progressive Wholesale Supply Co.,
28 S.W.3d 333 (Mo. App. E.D. 2000)

Tri-Cnty. Retreading, Inc. v. Bandag, Inc., 851 S.W.2d 780,
784 (Mo. App. E.D. 1993)
Under certain circumstances, however, a choice-of-law provision may
be disregarded. See, e.g., Swallow v. Enter. Truck Lines, Inc.,
894 S.W.2d 232, 233 (Mo. App. E.D. 1995); Miller v. Hirschbach Motor
Lines, Inc., 714 S.W.2d 652, 655 (Mo. App. S.D. 1986) (holding limited
by enactment of statute directed to other issues in the case). In
Swallow and Miller, there was no connection to the state whose law
had been designated in the contract other than the language in the
contract, and the Missouri court believed that Missouri had a greater
interest in the application of its own laws.
Even when a choice-of-law provision is enforced, the court only
applies the substantive law of the chosen state, and procedural
questions are determined by the state law in which the action is
brought. Consol. Fin. Invs., Inc. v. Manion, 948 S.W.2d 222, 224
(Mo. App. E.D. 1997). For example, Missouri courts consider statutes
of limitations to be procedural questions. Id.
Practitioners should be aware of the “borrowing statute” in Missouri.
Section 516.190, RSMo 2000, provides: “Whenever a cause of action
has been fully barred by the laws of the state, territory or country in
which it originated, said bar shall be a complete defense to any action
thereon, brought in any of the courts of this state.” Missouri courts
have construed “originates” to mean when the cause of action accrues,
and counsel should refer to § 516.100, RSMo 2000, to determine when
the cause of action accrues. Natalini v. Little, 185 S.W.3d 239, 243–44
(Mo. App. S.D. 2006). For a full discussion of the interplay between
the conflict-of-laws analysis and the application of § 516.190, see
Thompson v. Crawford, 833 S.W.2d 868 (Mo. banc 1992).
1–50