Instructions
M Civ JI 16.01 Meaning of Burden of Proof [Renumbered to M Civ JI 8.01]
M Civ JI 16.02 Burden of Proof in Negligence Cases on the Issues and Legal Effect Thereof
M Civ JI 16.03 Burden of Proof in Negligence Cases on the Issues and Legal Effect Thereof, Including the Issues of Contributory Negligence and Subsequent Negligence (Last Clear Chance] or Intentional Misconduct [Instruction Deleted]
M Civ JI 16.04 Burden of Proof in Negligence Cases on Affirmative Defenses Other Than Contributory Negligence
M Civ JI 16.05 Burden of Proof and Legal Effect Thereof in Negligence Cases—Complaint And Counterclaim
M Civ JI 16.06 Burden of Proof and Legal Effect Thereof in Negligence Cases—Third-Party Complaint—Contribution Only
M Civ JI 16.07 Evenly Balanced Evidence [Recommend No Instruction]
M Civ JI 16.08 Burden of Proof in Negligence Cases (To Be Used in Cases Filed on Or After March 28, 1996)
History
M Civ JI 16.01 was SJI 21.01.
Amended October 1984.
Renumbered to M Civ JI 8.01 November 1998. TOP
The plaintiff has the burden of proof on each of the following propositions:
- that the plaintiff [was injured / sustained damage]
- that the defendant was negligent in one or more of the ways claimed by the plaintiff, as stated to you in these instructions
- that the negligence of the defendant was a proximate cause of the [injuries / damages] to the plaintiff
*(The defendant has the burden of proof on [his / her] claim that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions; and that such negligence was a proximate contributing cause of the [injuries / damages] to the plaintiff.)
†(Your verdict will be for the plaintiff, if [he / she] was [injured / damaged], and defendant was negligent, and such negligence was a proximate cause of [his / her] [injuries / damages].)
†(Your verdict will be for the defendant, if plaintiff was not [injured / damaged]; or the defendant was not negligent; or if negligent, such negligence was not a proximate cause of the [injuries / damages].)
*(If you find that each party was negligent and that the negligence of each party was a proximate cause of the plaintiff’s [injuries / damages], then you must determine the degree of such negligence, expressed as a percentage, attributable to the plaintiff. Negligence on the part of the plaintiff does not bar recovery by the plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.)
*(The Court will furnish a Special Verdict Form to assist you in your duties. Your answers to the questions in the Special Verdict Form will provide the basis on which this case will be resolved.)
Note on Use
M Civ JI 16.08 should be used for cases 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 death. See 1995 PA 161and 249 .
*These three paragraphs should not be read to the jury if comparative negligence is not an issue in the case.
†The two paragraphs beginning with the words “Your verdict” are not necessary if a Special Verdict Form is used.
Comment
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
M Civ JI 16.02 is a revision of SJI 21.02.
Amended September 1980. TOP
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). The remainder of the instruction is no longer necessary.
History
M Civ JI 16.03 was a revision of SJI 21.02(A).
Amended October 1988.
Deleted August 1991. TOP
In this case the defendant has asserted [the affirmative defense that / certain affirmative defenses that] [Concisely state affirmative defense(s).].
The defendant has the burden of proving [this defense / these defenses].
Your verdict will be for the defendant if any of these affirmative defenses has been proved.
Note on Use
This instruction is to be given if accord and satisfaction, release, and/or statute of limitations that act as a complete bar to recovery are at issue. It may be used in conjunction with M Civ JI 16.08 Burden of Proof in Negligence Cases (To Be Used in Cases Filed on or after March 28, 1996) or, if applicable, M Civ JI 16.02 Burden of Proof in Negligence Cases on the Issues and Legal Effect Thereof.
History
M Civ JI 16.04 replaced SJI 21.03.
Added September 1980. TOP
In this action there is not only the claim of the plaintiff against the defendant, but also a claim by the defendant against the plaintiff. This is known as a counterclaim.
Because there is a counterclaim in this case, you may reach one of four results.
First, your verdict may be for the plaintiff on [his / her] claim and against the defendant on [his / her] counterclaim.
Second, your verdict may be for the defendant on [his / her] counterclaim and against the plaintiff on [his / her] claim.
Third, your verdict may be against both the plaintiff on [his / her] claim and the defendant on [his / her] counterclaim.
Fourth, your verdict may be for the plaintiff on [his / her] claim and for the defendant on [his / her] counterclaim.
As to plaintiff’s claim, [he / she] has the burden of proof on each of the following propositions:
- that the plaintiff [was injured / sustained damages]
- that the defendant was negligent in one or more of the ways claimed by the plaintiff as stated to you in these instructions
- that the negligence of the defendant was a proximate cause of the [injuries / damages] to the plaintiff
The defendant has the burden of proof on [his / her] defense that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions; and that such negligence was a proximate contributing cause of the injury to the plaintiff.
Your verdict will be for the plaintiff on [his / her] claim, if [he / she] was [injured / damaged], and defendant was negligent, and such negligence was a proximate cause of plaintiff’s [injuries / damages].
Your verdict will be for the defendant on plaintiff’s claim, if plaintiff was not [injured / damaged], or if defendant was not negligent, or if negligent, such negligence was not a proximate cause of the [injuries / damages].
If you find that each party was negligent and that the negligence of each party was a proximate cause of the plaintiff’s injuries or damages, then you must determine the degree of such negligence, expressed as a percentage, attributable to the plaintiff. Negligence on the part of the plaintiff does not bar recovery by the plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.
As to the defendant’s counterclaim, [he / she] has the burden of proof on each of the following propositions:
- that the defendant [was injured / sustained damages]
- that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions
- that the negligence of the plaintiff was a proximate cause of the [injuries / damages] to the defendant
The plaintiff has the burden of proof on [his / her] defense that the defendant was negligent in one or more of the ways claimed by the plaintiff as stated to you in these instructions; and that such negligence was a proximate contributing cause of the [injuries / damages] to the defendant.
Your verdict will be for the defendant on [his / her] counterclaim if [he / she] was [injured / damaged], and plaintiff was negligent, and such negligence was a proximate cause of defendant’s [injuries / damages].
Your verdict will be for the plaintiff on defendant’s counterclaim if defendant was not [injured / damaged], or if the plaintiff was not negligent, or if negligent, such negligence was not a proximate cause of the [injuries / damages].
If you find that each party was negligent and that the negligence of each party was a proximate cause of the defendant’s injuries or damages, then you must determine the degree of such negligence, expressed as a percentage, attributable to the defendant. Negligence on the part of the defendant does not bar recovery by the defendant against the plaintiff. However, the percentage of negligence attributable to the defendant will be used by the Court to reduce the amount of damages which you find to have been sustained by the defendant.
Note on Use
This instruction is for the negligence case in which either the plaintiff or the defendant or both may recover.
It should be given with M Civ JI 8.01, which defines burden of proof.
If the case involves an affirmative defense, or a third-party complaint, use M Civ JI 16.04 or 16.06 together with this instruction.
To make this instruction more understandable the Court may refer to the parties by name.
History
M Civ JI 16.05 is a revision of SJI 21.04.
Amended September 1980. TOP
In addition to the claim of the plaintiff, [name of plaintiff], there is also a claim by the defendant, [name of defendant]. This is called a third-party complaint and the defendant, [name of defendant], is called the third-party plaintiff and [name] is called the third-party defendant.
[Give the applicable paragraphs from M Civ JI 16.02.]
[Name of third-party plaintiff] has the burden of proof on each of the following propositions:
- that [name of third-party defendant] was negligent in one or more of the ways claimed by [name of third-party plaintiff] as stated to you in these instructions
- that the negligence of [name of third-party defendant] was a proximate cause of the [injuries / damages] to the plaintiff, [name of plaintiff]
[Name of third-party defendant] has the burden of proof on [his / her] claim that the plaintiff, [name of plaintiff], was negligent in one or more of the ways claimed by [name of third-party defendant] as stated to you in these instructions; and that such negligence was a proximate contributing cause of the [injuries / damages] to the plaintiff, [name of plaintiff].
If your verdict is for the plaintiff, [name of plaintiff], against the defendant, [name of defendant], then your verdict will be for [name of third-party plaintiff] if [name of third-party defendant] was negligent, and such negligence was a proximate cause of plaintiff [name of plaintiff]’s [injuries / damages].
If your verdict is for the defendant, [name of defendant], then your verdict must also be for [name of third-party defendant].
Even if your verdict is against the defendant, [name of defendant], your verdict will be for [name of third-party defendant] if [he / she] was not negligent, or, if negligent, such negligence was not a proximate cause of plaintiff [name of plaintiff]’s [injuries / damages].
Comment
For rights to contribution among persons jointly liable in tort, see MCL 600.2925a–.2925d.
In late 1995, the Michigan legislature abrogated joint liability in most cases and thereby eliminated most actions for contribution among tort-feasors:
Except as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint. However, this section does not abolish an employer’s vicarious liability for an act or omission of the employer’s employee.
Section 6304 created two exceptions to the abolishment of joint liability. MCL 600.6304(4). The first exception applies to medical malpractice actions. In medical malpractice actions in which the plaintiff is determined to be without fault, liability of defendants is joint and several. MCL 600.6304(6)(a). In medical malpractice actions in which the plaintiff is determined to have fault, a mechanism for allocating uncollectable amounts to certain defendants is provided. MCL 600.6304(6)(b), 6304(7). The second exception to the abrogation of joint liability is for defendants who have been found liable for an act or omission that also constitutes one of the enumerated crimes for which the defendant was convicted. MCL 600.6312.
History
M Civ JI 16.06 was SJI 21.05. TOP
Comment
The committee recommends that no instruction on “evenly balanced evidence” be given. An “evenly balanced evidence” instruction is unnecessary, since the jury will be instructed on the burden of proof. See M Civ JI 8.01 Meaning of Burden of Proof. Not only is such an instruction unnecessary, but it may be prejudicial error in certain circumstances. See Krisher v Duff, 331 Mich 699; 50 NW2d 332 (1951); cf. Hale v Knapp, 134 Mich 622; 96 NW 1060 (1903).
History
M Civ JI 16.07 was SJI 21.06. TOP
The plaintiff has the burden of proof on the following propositions:
- that the defendant was negligent in one or more of the ways claimed by the plaintiff *(as stated to you in these instructions)
- that the plaintiff [was injured / sustained damage]
- that the negligence of the defendant was a proximate cause of the [injuries / damages] to the plaintiff.
**Your verdict will be for the plaintiff if you decide that all of these have been proved.
**Your verdict will be for the defendant if you decide that any one of these has not been proved.
†(The defendant has the burden of proof on [his / her] claim that the plaintiff was negligent in one or more of the ways claimed by the defendant *(as stated to you in these instructions), and that such negligence was a proximate cause of the [injuries / damages] to the plaintiff.)
‡(The defendant has the burden of proof on [his / her] claim that [name of nonparty] was negligent, and that the negligence of [name of nonparty] was a proximate cause of the [injuries / damages] to the plaintiff.)
†(If your verdict is for the plaintiff, then you must determine the percentage of fault for each party or nonparty whose negligence was a proximate cause of plaintiff’s [injuries / damages]. In determining the percentage of fault, you should consider the nature of the conduct, and the extent to which each person’s conduct caused or contributed to plaintiff’s [injuries / damages].
†(The Court will furnish a Special Verdict Form to assist you in your duties. Your answers to the questions in the Special Verdict Form will provide the basis on which this case will be resolved.)
Note on Use
*If the parties waive the court’s reading of the theories of the parties (see M Civ JI 7.01, Theories of the Parties), the court should delete the phrase in parentheses.
**The two paragraphs beginning with the words “Your verdict” are not necessary if a Special Verdict Form is used.
†These three paragraphs should not be read to the jury if comparative negligence is not an issue in the case.
‡This paragraph should only be used if defendant has identified a nonparty pursuant to MCL 600.2957.
This instruction may have to be modified or other instructions given if fault, such as intentional conduct, is an issue in the case. By statutory definition, “fault” “includes 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.” MCL 600.6304(8).
Comment
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).
When allocating fault in an action based on tort or another legal theory, the jury must consider evidence of intentional conduct. MCL 600.6304.
History
M Civ JI 16.08 was added June 1997.
Amended March 1999. TOP