PJC General Negligence 2022

N EGLIGENCE P ER S E

PJC 5.6

Standard of care. To “encourage” its employees within the meaning of section 106.14, an employer “must act (or fail to act) at least negligently.” Parker , 249 S.W.3d at 398. In this sense— [t]he relevant comparison will be to a reasonable provider of the defen dant’s type (a bar or liquor store owner, for example), and the circum stances in these cases will include a provider’s awareness of, and reliance on, its employees’ successful completion of an approved seller training pro gram. Thus, a plaintiff can show encouragement not only by direct evi dence that the provider knowingly ordered or rewarded over-service, but also by circumstantial evidence that the provider engaged in behavior that a reasonable provider should have known would constitute encouragement. Parker , 249 S.W.3d at 398. Additional instructions defining the employer’s standard of care may therefore be appropriate here. “Employer” includes “vice-principals.” For purposes of section 106.14(a), “employer” includes “vice principals.” Parker , 249 S.W.3d at 399. An additional instruction, similar to that found in PJC 10.15, may therefore be appropriate here. How to use. PJC 5.6 is appropriate if the statutory affirmative defense is pleaded and the evidence raises a question of fact on one or more of the elements. If either of the first two elements is indisputably established, or if the claimant fails to raise a question of fact with regard to the third element (in the second question in PJC 5.6), that element should not be submitted. If the employer is the only defendant, any per centage of responsibility question should be appropriately conditioned on a negative answer to PJC 5.6. If the employee and the employer are both defendants at the time of submission, the percentage of responsibility question, if applicable, should submit only the provider’s responsibility, which would then be imputed or not, depending on the answer to the above question.

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