 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Boggs v. Lay3/8/2005
, 431 (Mo. banc 1985) and W. Prosser and W. Keeton, Prosser & Keeton on the Law of Torts, section 30, p. 164 (5th ed. 1984). As Prosser states:
The existence of duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other -- or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.
Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.App. E.D. 1993) quoting William L. Prosser, Law of Torts, section 36 (3d ed. 1964).
Whether a duty exists is purely a question of law. Lopez, 26 S.W.3d at 155. A duty to exercise care may be imposed by a controlling statute or ordinance, assumed by contract, or imposed by common law under the circumstances of a given case. Bowan ex rel. Bowan v. Express Medical Transporters, Inc., 135 S.W.3d 452, 457 (Mo.App. E.D. 2004); 65 C.J.S. Negligence section 33. p. 325. "The judicial determination of the existence of duty rests on sound public policy."
Hosto v. Union Elec. Co., 51 S.W.3d 133, 139 (Mo.App. E.D. 2001) quoting Hoover's Dairy, 700 S.W.2d at 431. Duty is simply an "expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." William L. Prosser, Law of Torts section 53, pp. 325-6 (4th ed. 1971). Any number of policy considerations may justify the imposition of duty in particular circumstances, including: the social consensus that the interest is worth protecting; the foreseeability of the injury and the degree of certainty that the plaintiff suffered injury; the moral blame society attaches to the defendant's conduct; the prevention of future harm; considerations of cost and the ability to spread the risk o f loss; and the economic burden on the actor and the community. Bowan,135 S.W.3d at 457 citing Strickland, 849 S.W.2d at 132 ( citing Hoover's Dairy, 700 S.W.2d at 432).
It is well settled that the duty to maintain a public road in a safe condition rests on the municipality, and not on the abutting property owner. Caldwell v. McGahan, 894 S.W.2d 237, 238 (Mo.App. E.D, 1995); see also, 40 C.J.S. Highways section 249 (1991); 39 Am.Jur. 2d Highways, Streets, and Bridges section 365 (1968). This rule, however, is not absolute. An abutting owner will be held liable for injuries sustained by travelers lawfully using the road as a result of conditions that the owner has been instrumental in creating or maintaining. Harris v. Woolworth, 824 S.W.2d 31, 33 (Mo.App. E.D. 1991) citing 25 Am.Jur, Highways section 365 and 40 C.J.S. Highways section 249. A person who creates a dangerous condition on a public roadway is liable for the foreseeable injuries caused thereby." Harris, 824 S.W.2d at 33.
Missouri courts recognize two exceptions to the general rule that an abutting property owner is under no duty to maintain a public road in a safe condition. Under the first, "special-use" exception, a duty will be imposed when an abutting property owner puts an obstruction on the public road which was not a part of the original construction in order to serve his own purposes, or, when the abutting owner has made use of the public road for some other purpose than merely using it as a road, such as a driveway or a private walkway. Caldwell, 894 S.W.2d at 238-9; see also, O'Connell v. Roper Elec. Co., Inc., 498 S.W.2d 847, 852 (Mo.App. 1973)(holding that an abutting landowner had a duty to maintain that portion of the public roadway that it had fenced off and used as a private walkway for its employees). An abutting property owner
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|