Introduction
Instructions
M Civ JI 50.01 Measure of Damages—Personal and Property
M Civ JI 50.02 Element of Damage—Pain and Suffering, Etc.
M Civ JI 50.03 Element of Damage—Disability and Disfigurement
M Civ JI 50.04 Element of Damage—Aggravation of Preexisting Ailment or Condition
M Civ JI 50.05 Element of Damage—Medical Expenses
M Civ JI 50.06 Element of Damage—Loss of Earning Capacity—Past and Future—Adult Plaintiff, Emancipated Minor
M Civ JI 50.07 Element of Damage—Loss of Future Earning Capacity—Unemancipated Minor Plaintiff
M Civ JI 50.08 Element of Damage—Miscellaneous Expense
M Civ JI 50.09 Element of Damage—Personal Property
M Civ JI 50.10 Defendant Takes the Plaintiff as He/She Finds Him/Her
M Civ JI 50.11 Inability to Determine Extent of Aggravation of Injuries
M Civ JI 50.21 Personal Injury Action: Definition of Economic Loss and Noneconomic Loss Damages; Separation of Future Damages by Year
M Civ JI 50.01–50.09 and M Civ JI 51.01–51.07 relate to damages or injury to person or property. Each series consists of a basic instruction stating that if the defendant is found liable the jury is to award damages as proved by the evidence. Following the basic instruction are a number of phrases setting out various elements of damages. These elements are to be inserted in the basic instruction. If there are elements which are not covered by these specific instructions but are equally appropriate, they should be inserted in the same way. By this method the instruction can be built up to include all the elements of damages which the evidence tends to prove in any given case. This building block system greatly simplifies the drafting of damage instructions.
M Civ JI 52.01 pertains to an injury to a spouse.
These instructions contemplate a case involving a single plaintiff and defendant. Adaptations may be required for multiple parties. See M Civ JI 40.01, 40.02, and 41.01.
The trial court has a duty to instruct the jury on the different elements of damage in a personal injury case. Jageriskey v Detroit United R Co, 163 Mich 631, 634; 128 NW 726, 727 (1910). However, the instruction on damages must not permit the jury to speculate or expand on the injuries beyond the scope of the evidence. Sabo v New York Central R Co, 365 Mich 231, 235; 112 NW2d 453, 455 (1961).
Chapter 53 deals with particular factors in computing damages. TOP
If you decide that the plaintiff is entitled to damages, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates [him / her] for each of the elements of damage which you decide has resulted from the [negligence / professional negligence or malpractice] of the defendant, taking into account the nature and extent of the injury.
You should include each of the following elements of damage which you decide has been sustained by the plaintiff to the present time:
[Here insert the appropriate elements of damage, such as: M Civ JI 50.02 Pain and Suffering, Etc.; M Civ JI 50.03 Disability and Disfigurement; M Civ JI 50.04 Aggravation of Preexisting Ailment or Condition]
You should also include each of the following elements of damage which you decide plaintiff is reasonably certain to sustain in the future:
[Reinsert applicable elements of damages as specified above.]
If any element of damage is of a continuing nature, you shall decide how long it may continue. *(If an element of damage is permanent in nature, then you shall decide how long the plaintiff is likely to live.)
Which, if any, of these elements of damage has been proved is for you to decide based upon evidence and not upon speculation, guess or conjecture. The amount of money to be awarded for certain of these elements of damage cannot be proved in a precise dollar amount. The law leaves such amount to your sound judgment. Your verdict must be solely to compensate plaintiff for [his / her] damages, and not to punish the defendant.
Note on Use
If any item of damage is admitted or established by undisputed evidence, the jury should be so instructed when such item is mentioned in the instruction.
This instruction cannot be given in the form shown. Complete the instruction by inserting the appropriate elements of damage from M Civ JI 50.02–50.09. If there are elements which are not covered by these instructions, but are equally appropriate, they should be inserted in the same way.
*The sentence in parentheses should be used if appropriate.
If evidence concerning plaintiff’s susceptibility to injury has been introduced, M Civ JI 50.10 Defendant Takes the Plaintiff As He/She Finds Him/Her may be given.
Comment
The object of damages is to compensate the aggrieved party for the injury sustained. Allison v Chandler, 11 Mich 542 (1863), approved in Muskegon Agency, Inc v General Telephone Co, 350 Mich 41; 85 NW2d 170 (1957). The instructions should not lead the jury to believe that an award of damages is to punish the defendant. Stillson v Gibbs, 53 Mich 280; 18 NW 815 (1884).
The extent, nature and permanency of injuries suffered are elements “peculiarly appropriate for the estimation and determination of the jury according as they find the fact to be.” Griggs v Saginaw & F R Co, 196 Mich 258, 267–268; 162 NW 960, 963 (1917), approved in A’Enoy v Lowry, 367 Mich 657; 116 NW2d 930 (1962); Greinke v Yellow Cab Co, 368 Mich 611; 118 NW2d 835 (1962).
Plaintiff is entitled to an instruction covering past, present and future injuries as covered by the proofs. See MCR 2.118(C), 2.601, and Wilton v Flint, 128 Mich 156; 87 NW 86 (1901). The jury should be instructed that future and permanent injuries must be “reasonably certain” to occur for damages to be so awarded. Finkelstein v Michigan R Co, 197 Mich 157; 163 NW 973 (1917); Bishop v Gaudio, 266 Mich 267; 253 NW 292 (1934); see also Motts v Michigan Cab Co, 274 Mich 437; 264 NW 855 (1936); but see Routsaw v McClain, 365 Mich 167; 112 NW2d 123 (1961), as to whether the “reasonably certain” rule has been relaxed.
History
M Civ JI 50.01 was SJI 30.01. TOP
… the [Insert applicable element(s).]
- *(physical pain and suffering)
- *(mental anguish)
- *(fright and shock)
- *(denial of social pleasure and enjoyments)
- *(embarrassment, humiliation or mortification)
Note on Use
*Insert the applicable element or elements of pain and suffering a–e in the blank provided. Other possible elements of pain and suffering may be inserted as appropriate.
The element or elements are then to be inserted in M Civ JI 50.01 when the evidence justifies their use. In order for material which relates to future pain and suffering to be included, there must be evidence from which it can be inferred that such pain and suffering is reasonably certain to be experienced in the future.
Comment
Pain and suffering are compensable elements of damage. Samuelson v Olson Transportation Co, 324 Mich 278; 36 NW2d 917 (1949); Beattie v Detroit, 137 Mich 319; 100 NW 574 (1904); Draper v Switous, 370 Mich 468; 122 NW2d 698 (1963); Brown v Arnold, 303 Mich 616; 6 NW2d 914 (1942).
Compensation may be allowed for future pain and suffering if reasonable certainty of such future pain and suffering is established. McDuffie v Root, 300 Mich 286; 1 NW2d 544 (1942); Motts v Michigan Cab Co, 274 Mich 437; 264 NW 855 (1936); Prince v Lott, 369 Mich 606; 120 NW2d 780 (1963).
If pain persists, the jury may be charged on the issue of future pain and suffering although there is no proof of permanent physical injury, Toman v Checker Cab Co, 306 Mich 87, 92; 10 NW2d 318, 320 (1943), and if pain persists, it is not error to charge the jury on future pain and suffering merely because there is no medical testimony that such would occur. Shinabarger v Phillips, 370 Mich 135, 142; 121 NW2d 693, 696 (1963).
If the facts justify it, the jury may be instructed to consider shame and mortification, mental pain, and anxiety which plaintiff suffered by reason of the injuries sustained. Beath v Rapid R Co, 119 Mich 512; 78 NW 537 (1899). Annoyance, discomfiture and humiliation related to the physical injury are also proper damage elements for the jury. Grenawalt v Nyphuis, 335 Mich 76; 55 NW2d 736 (1952); see also Decorte v New York Central R Co, 377 Mich 317, 330–331; 140 NW2d 479, 484 (1966); Manie v Matson Oldsmobile-Cadillac Co, 378 Mich 650; 148 NW2d 779 (1967); Ross v Leggett, 61 Mich 445; 28 NW 695 (1886). Denial of social pleasure and enjoyments are also proper damage elements if properly pleaded. See Beath.
Fright and shock are also proper damage elements for the jury to consider. Geveke v Grand Rapids & I R Co, 57 Mich 589; 24 NW 675 (1885); Sherwood v Chicago & W M R Co, 82 Mich 374; 46 NW 773 (1890).
History
M Civ JI 50.02 was SJI 30.02. TOP
… the *(disability including the loss or impairment of [Describe.])
*(and the)
*(disfigurement of [Describe.])
Note on Use
*The appropriate element or elements are to be inserted in M Civ JI 50.01 where the evidence justifies their use. A brief description of the disability or disfigurement or both must be inserted to tailor the instruction to the facts of the case.
Comment
Disability and disfigurement are recognized as separate elements of compensable damages in Michigan. Where relevant, they may both be properly inserted in M Civ JI 50.01. Disfigurement and disability were both held compensable elements of damage in Shaw v Chicago & G T R Co, 123 Mich 629; 82 NW 618 (1900), and Power v Harlow, 57 Mich 107; 23 NW 606 (1885). Instructions including disfigurement as an element of compensable damage were approved in Sherwood v Chicago & W M R Co, 82 Mich 374; 46 NW 773 (1890), and Gilson v Bronkhorst, 353 Mich 148; 90 NW2d 701 (1958). Disabilities were held compensable in Brininstool v Michigan United R Co, 157 Mich 172; 121 NW 728 (1909); Ott v Wilson, 216 Mich 499; 185 NW 860 (1921); McDuffie v Root, 300 Mich 286; 1 NW2d 544 (1942); Prince v Lott, 369 Mich 606; 120 NW2d 780 (1963); and Magda v Johns, 374 Mich 14; 130 NW2d 902 (1964).
History
M Civ JI 50.03 was SJI 30.03. TOP
… the *(increase in [Describe.] arising from aggravation of a preexisting ailment or condition)
Note on Use
*Insert this element in M Civ JI 50.01 Measure of Damages—Personal and Property if the proof justifies submitting the issue of aggravation of a preexisting ailment or condition. Insert language describing the particular aggravation, such as increased “pain in his left leg,” or “disability from loss of sight.”
If it appears from the evidence that the jury may have difficulty determining the damages caused by defendant as compared to those resulting from a preexisting ailment or condition, M Civ JI 50.11 Inability to Determine Extent of Aggravation of Injuries should be given.
Comment
Reasonable compensation may be awarded for the increase of pain and suffering, increased disability, and related expenses arising from aggravation of a preexisting ailment or condition. Schwingschlegl v City of Monroe, 113 Mich 683; 72 NW 7 (1897); Mosley v Dati, 363 Mich 690; 110 NW2d 637 (1961); Rypstra v Western Union Telegraph Co, 374 Mich 166; 132 NW 140 (1965).
History
M Civ JI 50.04 was SJI 30.04. TOP
… the *(reasonable expenses of necessary medical care, treatment and services)
Note on Use
*This element is to be inserted in M Civ JI 50.01 when the evidence justifies its use.
Comment
Reasonable expenses of necessary medical care are compensable elements of damage. Foley v Detroit & M R Co, 193 Mich 233; 159 NW 506 (1916). These include past and prospective expenses. Sherwood v Chicago & W M R Co, 82 Mich 374; 46 NW 773 (1890). The reasonable value of the medical care must be established. Herter v Detroit, 245 Mich 425; 222 NW 774 (1929).
History
M Civ JI 50.05 was SJI 30.05. TOP
… the *(loss of earning capacity)
Note on Use
*This element is to be inserted in M Civ JI 50.01 when the evidence justifies its use.
Comment
It is the loss of earning capacity for which damages are awarded as a result of a personal injury. Canning v Hannaford, 373 Mich 41; 127 NW2d 851 (1964); Prince v Lott, 369 Mich 606; 120 NW2d 780 (1963); Harris v Wiener, 362 Mich 656; 107 NW2d 789 (1961). The injured party may recover for loss of earning capacity although he or she may have received salary, wages or other compensation during the time he or she was incapacitated. Motts v Michigan Cab Co, 274 Mich 437; 264 NW 855 (1936); Canning.
History
M Civ JI 50.06 was SJI 30.06. TOP
… the *(loss of earning capacity after the plaintiff has reached the age of eighteen)
Note on Use
*This element is to be inserted in M Civ JI 50.01 when the evidence justifies its use and the plaintiff is an unemancipated minor.
Comment
As to use of the term “earning capacity,” see Comment to M Civ JI 50.06.
In actions for damages arising out of an injury to an unemancipated minor, the loss of earning capacity during the child’s minority is recoverable by the parents. Vink v House, 336 Mich 292; 57 NW2d 887 (1953); Gumienny v Hess, 285 Mich 411; 280 NW 809 (1938); Mulder v Achterhof, 258 Mich 190; 242 NW 215 (1932). The child’s recovery, therefore, is limited to the loss of his earning capacity after he or she reaches the age of eighteen (the age of majority, as provided by 1971 PA 79, MCL 722.52 et seq), unless the parents waive their rights. See Gumienny, 285 Mich at 414–415; 280 NW at 810.
History
M Civ JI 50.07 is a revision of SJI 30.07.
Amended February 1, 1981. TOP
… the *(reasonable expense for [Insert applicable items.], which has been required as a result of the injury)
Note on Use
*This element is to be inserted in M Civ JI 50.01 when there is evidence of miscellaneous compensable expenses, such as for caretaking, substitute transportation and baby-sitting.
Comment
Michigan has long followed the general rule that a plaintiff may recover for the necessary and reasonable expenses incurred as a consequence of the injury. See, e.g., Andries v Everitt-Metzger-Flanders Co, 177 Mich 110; 142 NW 1067 (1913); Foley v Detroit & M R Co, 193 Mich 233; 159 NW 506 (1916); Sherwood v Chicago & W M R Co, 82 Mich 374; 46 NW 773 (1890); Allison v Chandler, 11 Mich 542 (1863).
History
M Civ JI 50.08 was SJI 30.08. TOP
… *(property damage, to be measured according to the [instruction / instructions] which I shall give you later)
Note on Use
*This element is to be inserted in M Civ JI 50.01 when the evidence justifies its use. It must then be followed by instructions taken from M Civ JI 51.01–51.07, as applicable in the particular case.
History
M Civ JI 50.09 was SJI 30.09. TOP
You are instructed that the defendant takes the plaintiff as [he / she] finds [him / her]. If you find that the plaintiff was unusually susceptible to injury, that fact will not relieve the defendant from liability for any and all damages resulting to plaintiff as a proximate result of defendant’s negligence.
Note on Use
This instruction should not be used in negligence cases in which the action is based on emotional distress, fright, or mental shock without a contemporaneous physical impact. While recovery may be permitted in such cases, it is subject to the limitation that “Absent specific knowledge of plaintiff’s unusual sensitivity, there should be no recovery for hypersensitive mental disturbance where a normal individual would not be affected under the circumstances.” Daley v LaCroix, 384 Mich 4, 13; 179 NW2d 390, 395 (1970) (citations omitted).
Comment
See Wilkinson v Lee, 463 Mich 388; 617 NW2d 305 (2000); Richman v City of Berkley, 84 Mich App 258; 269 NW2d 555 (1978).
History
M Civ JI 50.10 was added January 1982. TOP
If an injury suffered by plaintiff is a combined product of both a preexisting [disease / injury / state of health] and the effects of defendant’s negligent conduct, it is your duty to determine and award damages caused by defendant’s conduct alone. You must separate the damages caused by defendant’s conduct from the condition which was preexisting if it is possible to do so.
However, if after careful consideration, you are unable to separate the damages caused by defendant’s conduct from those which were preexisting, then the entire amount of plaintiff’s damages must be assessed against the defendant.
Comment
See Schwingschlegl v City of Monroe, 113 Mich 683; 72 NW 7 (1897); Mason v Chesapeake & O R Co, 110 Mich App 76; 312 NW2d 167 (1981); Richman v City of Berkley, 84 Mich App 258; 269 NW2d 555 (1978); McNabb v Green Real Estate Co, 62 Mich App 500; 233 NW2d 811 (1975). See also Belue v Uniroyal Inc, 114 Mich App 589; 319 NW2d 369 (1982).
History
M Civ JI 50.11 was added October 1982. TOP
In this case, you must determine a separate amount for each year in the future for which plaintiff will sustain damages.
You will also be required to separate the two types of damages available in this case. The first type, “economic loss” damages, consists of such things as medical expenses, loss of wages or lost earning potential, and miscellaneous expenses. The second type, “noneconomic loss” damages, means damages or loss due to pain, suffering, inconvenience, physical impairment, physical disfigurement, and [other noneconomic loss; i.e., see M Civ JI 50.02 (b)–(e)].
Comment
History
M Civ JI 50.21 was added June 1987. TOP