Instructions
M Civ JI 14.01 Subsequent Negligence (Last Clear Chance)—Helpless or Inattentive Plaintiff [Instruction Deleted]
M Civ JI 14.02 Willful and Wanton Misconduct—Common Law [Instruction Deleted]
M Civ JI 14.10 Gross Negligence—Definition
M Civ JI 14.11 Wanton Misconduct—Definition
M Civ JI 14.12 Willful Misconduct—Definition
M Civ JI 14.20 Emergency Medical Services Act—Explanation
M Civ JI 14.21 Emergency Medical Services Act—Burden of Proof
Comment
The doctrine of last clear chance as a separate defense to contributory negligence has been superseded by the adoption of pure comparative negligence. Petrove v Grand Trunk W R Co (On Remand), 437 Mich 31; 464 NW2d 711 (1991). In addition, the doctrine of last clear chance as a formulation of gross negligence has been discarded. Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994).
History
M Civ JI 14.01 was a revision of SJI 14.01.
Deleted August 1991. TOP
Comment
Comparative fault should be applied in all actions filed on or after March 28, 1996, that are based on tort or another legal theory and seek damages for personal injury, property damage, or wrongful death. 1995 PA 249 (MCL 600.2957). Fault is defined to include “an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.” 1995 PA 249 (MCL 600.6304(8)).
Prior law held that comparative negligence should be applied in all common-law tort actions sounding in negligence where defendant’s misconduct falls short of being intentional. Vining v Detroit, 162 Mich App 720; 413 NW2d 486 (1987); lv denied, 430 Mich 892 (1988).
History
Deleted July 1988. TOP
Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result.
Note on Use
This instruction may be used in cases arising under the government tort liability act, MCL 691.1407(2)(c), if gross negligence is an issue for the jury in the case. Tallman v Markstrom, 180 Mich App 141; 446 NW2d 618 (1989); Vermilya v Dunham, 195 Mich App 79; 489 NW2d 496 (1992).
This instruction may also be used in cases arising under the statutes limiting the liability of certain governmental units to gross negligence in regard to off-road recreational vehicles, MCL 324.81131, and snowmobiles, MCL 324.82124, and the statutes making the insurance commissioner and his or her representatives immune from civil liability for conduct not amounting to gross negligence, MCL 500.214. All of these statutes contain the definition of gross negligence from the government tort liability act.
This instruction may be combined with the definitions of wanton, M Civ JI 14.11, and willful, M Civ JI 14.12, misconduct, if appropriate. M Civ JI 14.20, Emergency Medical Services Act—Explanation, and M Civ JI 14.21, Emergency Medical Services Act—Burden of Proof, provide a model for such instructions.
The committee takes no position on the application of this instruction in a context other than the statutes discussed in this use note and comment.
The definition of gross negligence in M Civ JI 14.10 comes from the government tort liability act. MCL 691.1407(2)(c). Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994), adopted this definition as the standard for gross negligence under the Emergency Medical Services Act. In adopting this definition, Jennings discarded the common-law definition of gross negligence (also called last clear chance, subsequent negligence, etc.) as both outdated in a comparative negligence system and inconsistent with the legislative intent to shield emergency medical services workers from liability for ordinary negligence. The “last clear chance” formulation of gross negligence had been applied in cases involving both the Emergency Medical Services Act and the recreational use statute. Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982).
The committee notes that the term gross negligence is used but not defined in other statutes that share the purpose of immunizing against liability for ordinary negligence. The threshold for liability in most of these statutes is gross negligence, but many add willful and wanton misconduct, bad faith conduct, or other terms without defining them.
The following statutes dealing with health and medical assistance uniformly limit liability to “gross negligence or willful and wanton misconduct” (sometimes adding “good faith conduct”):
- doctors or nurses who render medical care at the scene of an emergency or perform physical examinations or emergency care in competitive sports situations, MCL 691.1501
- doctors, nurses, and other medical personnel who are not under a duty to respond but do respond to life-threatening emergencies in hospitals or medical care facilities, MCL 691.1502
- block parent volunteers who aid minors in emergencies, MCL 691.1505
- registered members of national ski patrol systems who provide emergency care, MCL 691.1507
- municipal or private ambulance drivers or attendants, or police officers or firefighters who provide first aid at the scene of emergencies, MCL 41.711a
- school administrators, teachers, or other designated school employees who administer medication to pupils with written permission, MCL 380.1178
- health personnel who participate in free immunization programs, MCL 333.9203
- persons who voluntarily render cardiopulmonary resuscitation, MCL 691.1504
- peace officers who are involved in mental illness admissions, MCL 330.1427b
- persons who file petitions to have others treated or committed for mental illness, MCL 330.1439
- law enforcement officers, staff of approved service programs, and certain others who deal with apparently incapacitated substance abusers, MCL 333.6508
There is also a statute that protects members of the state health planning council or employees of that office from criminal or civil liability except for “wanton and willful misconduct.” MCL 325.2021.
Several statutes provide partial immunity in disaster relief or other emergency situations. The emergency management act limits the liability of various disaster relief workers as well as of landowners who provide shelter, MCL 30.411, and allows for a directive limiting the liability of suppliers of voluntary or private assistance, MCL 30.407. Similar statutes provide partial immunity for volunteers in hazardous spill remedial actions. MCL 324.20302. The environmental response act sets limitations on costs and damages resulting from the release or the threat of release of hazardous substances, MCL 324.20131, and limits liability in response activities MCL 324.20126. Another statute limits liability for civil damages for those who provide emergency telephone services, MCL 484.1604 (repealed effective December 31, 2006, see 1999 PA 79).
Three statutes give landowners, lessees, and tenants partial immunity; all set the threshold at “gross negligence or willful and wanton misconduct.” The recreational use act limits the liability of landowners, tenants, or lessees for injury to persons (usually gratuitous users) on the property for outdoor recreation or agricultural, fishing, or hunting purposes. MCL 324.73301. The recreational trespass act limits the liability of owners, tenants, or lessees for injury to persons on the land with consent for recreational or trapping use who have not paid valuable consideration. MCL 324.73107. Another statute protects landowners who lease their land for habitat development and hunter access. MCL 324.43556.
Finally, two sections of the Insurance Code protect various persons from liability for statements made concerning insureds or applicants for insurance, MCL 500.2124, or acts or omissions relating to the exchange of claim information, MCL 500.2130, unless there is gross negligence or bad faith with malice in fact.
History
M Civ JI 14.10 was added September 1995. TOP
Wanton misconduct means conduct or a failure to act that shows such indifference to whether harm will result as to be equal to a willingness that harm will result.
Note on Use
This instruction may be used in combination with M Civ JI 14.10 and 14.12 in cases arising under the recreational use statute, Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982); and the good samaritan act, Higgins v Detroit Osteopathic Hospital Corp, 154 Mich App 752; 398 NW2d 520 (1986). It should also be applicable to most other limited tort liability statutes that employ the terms willful and wanton without defining them. See comment to M Civ JI 14.10. M Civ JI 14.20, Emergency Medical Services Act—Explanation, and M Civ JI 14.21, Emergency Medical Services Act—Burden of Proof, provide a model for instructions combining one or more of the definitions in M Civ JI 14.10, 14.11, and 14.12.
The committee takes no position on the application of this instruction in a context other than the statutes discussed in this comment and the comment to M Civ JI 14.10.
Comment
In Burnett, the Michigan Supreme Court defined willful and wanton: “[W]illful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.” Burnett, at 455. In Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994), which construed willful as used in the Emergency Medical Services Act, the court approved the Burnett definition with a refinement. The court said that willful and wanton are distinct and logically inconsistent, so “willful and wanton” is to be read as “willful or wanton.” Willful, as Burnett said, requires intent to harm while wanton means the equivalent, reckless conduct without intent to harm but with indifference as to the result.
History
M Civ JI 14.11 was added September 1995. TOP
Willful misconduct means conduct or a failure to act that was intended to harm the plaintiff.
Note on Use
This instruction may be used in combination with M Civ JI 14.10 and 14.11 in cases arising under the recreational use statute, Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982); and the good samaritan act, Higgins v Detroit Osteopathic Hospital Corp, 154 Mich App 752; 398 NW2d 520 (1986). It should also be applicable to most other limited tort liability statutes that employ the terms willful and wanton without defining them. See comment to M Civ JI 14.10. M Civ JI 14.20, Emergency Medical Services Act—Explanation, and M Civ JI 14.21, Emergency Medical Services Act—Burden of Proof, provide a model for instructions combining one or more of the definitions in M Civ JI 14.10, 14.11, and 14.12.
The committee takes no position on the application of this instruction in a context other than the statutes discussed in this comment and the comment to M Civ JI 14.10.
Comment
In Burnett, the Michigan Supreme Court defined willful and wanton: “[W]illful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.” Burnett, at 455. In Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994), which construed willful as used in the Emergency Medical Services Act, the court approved the Burnett definition with a refinement. The court said that willful and wanton are distinct and logically inconsistent, so “willful and wanton” is to be read as “willful or wanton.” Willful, as Burnett said, requires intent to harm while wanton means the equivalent, reckless conduct without intent to harm but with indifference as to the result.
History
M Civ JI 14.12 was added September 1995. TOP
An emergency medical services worker acting in an emergency situation is liable for injuries to a patient caused by the worker’s conduct or failure to act only if the conduct or failure to act constitutes gross negligence or willful misconduct.
[Insert M Civ JI 14.10 Gross Negligence—Definition.]
[Insert M Civ JI 14.12 Willful Misconduct—Definition.]
Note on Use
The Emergency Medical Services Act applies only to emergencies. Knight v Limbert, 170 Mich App 410; 427 NW2d 637 (1988); Pavlov v Community Emergency Medical Services, Inc, 195 Mich App 711; 491 NW2d 874 (1992).
On the question of whether the Emergency Medical Services Act applies to governmental units and their employees, see Malcolm v East Detroit, 437 Mich 132, 141 fn 9; 468 NW2d 479 (1991), and subsection (2) of MCL 333.20965.
Comment
MCL 333.20965. Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994).
History
M Civ JI 14.20 was added January 1996. TOP
The plaintiff has the burden of proof on each of the following:
- that [he / she] was injured
- that defendant’s conduct or failure to act constituted gross negligence or willful misconduct
- that the gross negligence or willful misconduct of the defendant was a proximate cause of the injury to the plaintiff.
*(Your verdict will be for the plaintiff if you find that all of these have been proved.)
*(Your verdict will be for the defendant if you find that any one of these has not been proved.)
Note on Use
The Emergency Medical Services Act applies only to emergencies. Knight v Limbert, 170 Mich App 410; 427 NW2d 637 (1988); Pavlov v Community Emergency Medical Services, Inc, 195 Mich App 711; 491 NW2d 874 (1992). If there are fact issues, such as the existence of an emergency or whether defendant is one of the persons enumerated in the statute, additional instructions on the alternative of ordinary negligence will have to be given.
*These paragraphs are not necessary if a special verdict form is used. These paragraphs should not be used if comparative negligence is an issue in the case. If comparative negligence is an issue, the court should use M Civ JI 11.01, Comparative Negligence—Definition, and should incorporate the comparative negligence issue in this burden of proof instruction. For guidance, see M Civ JI 16.02, Burden of Proof in Negligence Cases on the Issues and Legal Effect Thereof.
Comment
MCL 333.20965. Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994).
History
M Civ JI 14.21 was added January 1996. TOP