dissenting.
I dissent from the majority opinion for the following reasons.
I.
Missouri case law has always demanded the highest degree of care regarding dangerous instrumentalities because of the great risk of injury or death. See e.g., MAI 11.01 (5th ed); Mrad v. Missouri Edison Co., 649 S.W.2d 936 (Mo.App.1983) (insulation and isolation of power lines); Wagstaff v. City of Maplewood, 615 S.W.2d 608 (Mo.App.1981) (firearms); Lottes v. Pessina, 174 S.W.2d 893 (Mo.App.1943) (explosives). The majority cursorily states that this standard of care is inapplicable because the injuries in this accident did not result from the electricity carried by the lines, but instead merely from colliding with the line itself. They rely upon a footnote from Pierce v. Platte-Clay Elec. Co-op., Inc., 769 S.W.2d 769 (Mo. banc1989), that distinguishes energized from non-energized lines.
Pierce, however, was a case that arose when a farmer was injured by a ground-level, non-energized “guy wire” used to stabilize an utility pole. In such a circumstance the non-energized wire did not have the same fatally dangerous potential as an electrical wire within reach from someone on the ground. Because the “guy wire” would not be expected to electrocute a person who might come into contact with it, the wire was held not to pose the special type of danger that would justify the higher standard of care.
The great danger of the transmission wires, here, had nothing to do with whether they were energized or not. Instead, they were uniquely dangerous because of their ability to cause almost certain death to the passengers of any aircraft that might strike them. This danger was compounded because the electrical wires were practically invisible to approaching aircraft, constituting a deadly trap. Three Rivers had knowledge of both the potential of aircraft to fly into these wires and the great danger of death to any such aircraft’s occupants from the 1975 accident that resulted in three fatalities.
Two Pennsylvania cases, Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956), and Bailey v. Pennsylvania Electric Co., 409 Pa.Super. 374, 598 A.2d 41 (1991), relied upon by plaintiffs, but not discussed by the majority, are directly on point. Both involved air strikes to power lines as opposed to contact with lines at ground level. The trial court in Baily succinctly described Yoffe’s distinction between air and ground wires in this way:
The Yoffee court, however, placed the highest degree of care standard upon the utility where there was an air strike, not an electrocution, because air strikes, like electrocutions carry a high probability of death or serious injury.
Bailey, 598 A.2d at 47.
Under traditional analysis of the law of dangerous instrumentalities, I would hold that the highest degree of care is applicable where, as here, a prior fatal air strike occurred at the same location alerting the utility to the life threatening potential of its power lines to aircraft because of their particular location, construction, and lack of warning.
II.
Even conceding for purposes of argument that it was error to give the “highest degree of care” instruction, I would not reverse the verdict for actual damages because I do not believe that prejudice re-*163suited in the unique circumstances of this case. I agree with the majority that normally when a jury is instructed as to a higher degree of care than required by law, after specific and timely objection, prejudice is presumed and might be found, Root by Root v. Mudd, 981 S.W.2d 651, 656 (Mo.App.1998). Whether prejudice actually exists, however, is not to be taken for granted, but has to be determined by the court. Fowler v. Park Corp., 673 S.W.2d 749, 755 (Mo. banc 1984). This must be done by carefully considering the actual language of the instructions as used, opposed to the language of the instructions as they should have been given, to the evidence received in the case.
In this case the jury was instructed to determine whether Three Rivers failed to use the highest degree of care. The highest degree of care was defined as “that degree of care that a very careful person would have used under the same or similar circumstances.” MAI 11.01 (5th ed.). Had the jury been instructed to determine whether Three Rivers failed to use ordinary care, ordinary care would have been defined as “that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.” MAI 11.05 (5th ed.); Cameron v. Small, 182 S.W.2d 565, 569 (Mo.1944).
The exercise of ordinary care as defined by our instructions must be “commensurate with the dangers to be apprehended.” Id. Thus, the conduct necessary to fulfill the duty of ordinary care depends upon the circumstances. An ordinarily careful and prudent person is required to use greater care in a more dangerous situation than he or she would use in a less dangerous situation and this may be argued to the jury.
I see little practical difference between the arguments actually made here under the “highest degree of care” instruction from those that would have been made under an “ordinary care” instruction. Had this issue been submitted under the “ordinary care” standard, Plaintiffs still would have been able to argue to the jury that because Three Rivers knew that aircraft flew low over the river at the location of these power lines; and because Three Rivers knew that a pilot could not see the power lines; and because Three Rivers knew that if an aircraft struck the power lines death would most likely result; and, in fact, because Three Rivers knew that this very type of accident had occurred before killing three people; that it was required even as an ordinary person, to be very careful. In short, I simply do not believe in the circumstances of this case that it would have made a difference that the jury was asked to determine the issue of Three Rivers’ negligence in terms of an “ordinarily careful” person being very careful, as opposed to that of a “a very careful person”. Fowler v. Park Corp., 673 S.W.2d 749, 755 (Mo. banc 1984), is almost precisely on point in this regard.
If anything, this case merely illustrates the questionable utility of instructions as to different degrees of care in cases involving special danger. Various legal commentators have noted that the trend in modern tort law is to disclaim varying degrees of care in describing the duty element of negligence. See, W. Page Keeton et al., Prosser and Keeton on the Law of Torts, section 34, at 210-211 (5th ed. 1987) (“The prevailing rule in most situations is that there are no ‘degrees’ of care or negligence, as a matter of law; there are only amounts of care, as a matter of fact.”); 3 Harper, James and Gray, The Law of Torts, section 16.13 at 503 (2d ed. 1986) (“For the most part, at least outside of the law of bailments, modern accident law has repudiated the notion that different degrees of care are exacted of people standing in different relationships to an injured party.”).
III.
Finally, I would rale Lopez’s cross-appeal concerning the sufficiency of the evidence to support a submission of comparative fault against George Lopez. This *164issue was preserved for review and the majority has seen fit to address a number of other issues “likely to recur on retrial”, including the issue of aggravated damages.
Lopez, a flight engineer, was not the pilot in command and had no control of the flight. For all relevant purposes, he was merely a passenger.
We look to automobile tort liability for guidance. See Section 305.040, RSMo 1994 (the liability of an aircraft owner “shall be determined by the rules of law applicable to torts on land”). An automobile driver’s negligence is not imputed to a passenger, absent a showing of joint enterprise, because the passenger has no control over the automobile’s operation. See e.g., Will v. Gilliam, 439 S.W.2d 498 (Mo.1969) (noting that driver’s negligence could not be imputed to daughter who was mere passenger with no control over automobile); see generally 57B Am.Jur.2d, Negligence section 1761, at 453-43 (discussing command and control requirement for imputing liability). Here, there is no evidence from which it could be inferred that Lopez had legal or actual ability regarding the flight plan or piloting of the helicopter. Any negligence attributed to pilot Jones cannot be imputed to Lopez. Further, no evidence was submitted that Lopez was negligent as to any individual action that may have caused the accident.
Because it is unlikely any new evidence concerning this issue can be presented at retrial, I would rule that Three Rivers did not make a submissible case for negligence against Lopez.