The Missouri Appellate Court, in two separate opinions, recently took up the issue of when the standard of “negligence per se” applies to the “Rules of the Road” statutory requirements. In both decisions the court, in well-reasoned opinions, found in one case the “negligence per se” standard did not apply but in the other decision it did apply. In reading both decisions, the court has laid out a clear standard for defense counsel and carriers to follow in deciding when the standard applies. In Allison vs Aubuchon the Court found this statute simply set forth a reasonable standard with respect to following too close and was not a mandatory command concerning specific conduct and therefore dismissed this count. In the other case, Hudder v Froese, decided a month before Allison the court held that the statute providing that a vehicle “shall stop at a red light before entering a crosswalk” created a mandatory command for specific conduct and formed the basis of a “negligence per se” cause of action.
It’s not uncommon for Plaintiffs to file petitions in auto crash cases and combine the same factual allegations under both common law negligence theories and negligence per se theories, based on the alleged violation of Missouri’s “Rules of the Road.” The task for the defense counsel is to determine whether the allegation of the statutory violation is properly pleaded and is a viable theory of recovery pursuant to the statutory provision pled.
In Alison v. Aubuchon, defendant rear ended a vehicle, which set off a chain reaction, which ultimately injured Plaintiff. The common law negligence allegation in Count I was that the Defendant was following too closely. Count II claimed the same conduct, but set forth a claim for negligence per se, under RSMo. §304.0171 (1) which provides, “The driver of a vehicle shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway.” Here there was no “specific” mandatory action required by the statutory provision.
In Hudder, the Court explained and held, “Here, the codes referenced by Plaintiff’s Amended Complaint set out a standard of care sufficient to allege a claim of negligence per se…. § 310.060 provides that vehicles facing a red traffic signal shall “stop before entering the crosswalk” or “intersection.” § 304.351 provides a similar prohibition that drivers “shall yield the right of way to any vehicle approaching from the opposite direction.” These are within the “class of safety statutes on which negligence per se is ordinarily based.” Furthermore, each statute indicates the specific conduct or action that constitutes a violation allowing it to serve as the basis of negligence per se claim.
To begin the analysis, be aware that in the auto crash context, Missouri, by statute, sets out the standard of care one must exercise when operating a motor vehicle on a public roadway. RSMo. §304.012 (1) provides that the driver “shall exercise the highest degree of care.” Counsel often alleges this statute not only as an allegation of the standard of care, and the duty owed, but also as an independent basis for liability. The latter form of allegation should be dismissed. This automobile operation standard of care is distinct from the standard of care in a non-auto case, which is the “failure to use that degree of care that an ordinarily careful person would use under the same or similar circumstances.”
A claim for negligence per se arises where the legislature pronounces in a statute what specific conduct a reasonable person must be, not considering what the common law would require for similar conduct. When the legislature has done so, “the court then adopts the statutory standard of care to define the standard of conduct of a reasonable person, and the jury is instructed on the statutory standard of care rather than the care of the reasonable person.” In other words, the jury will consider whether the action required by the statute was complied with and won’t consider what an ordinary careful person would have done. These negligence per se claims are harder to defend, because to escape liability in a common law negligence claim. While an argument can still be made to a jury that the action of the defendant was reasonable and defendant exercised the highest degree of care, it’s much harder to argue the statute was not violated, when the facts show otherwise and the negligent per se.
So, the lesson for the defense counsel and insurer, upon receipt of a petition, which contains similar common law negligence allegations and negligence per se allegations, is to examine the Missouri statutes cited to determine if a specific mandatory action is required, finding the text of that particular part of the statutes pleaded, required mandatory specific conduct… or whether a reasonableness standard of care is required. Look for the word “shall” or “must.” If you see those there is a good chance Plaintiff will be able to submit on the statutory violation making it more difficult to argue the defendant acted reasonably under the circumstances the defendant was faced with at the time of the accident.
ALLISON AUBUCHON, Plaintiff, v. TATE TRUCKING, LLC, & WENDIMU MITANO Defendants., No. 4:24CV189 HEA, 2024 WL 4285880, at *1–5 (E.D. Mo. Sept. 25, 2024)
HUDDER v, FROESE, No. 4:24-CV-334-MTS, 2024 WL 3967131, at *1–2 (E.D. Mo. Aug. 28, 2024)