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 ]

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The doctrine of last clear chance as a separate defense to contributory negligence has been superseded by the adoption of pure comparative negligence.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.

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 the defendant has proved [ that / any one of those ] affirmative defense(s).

Note on Use

This instruction is to be given if accord and satisfaction, release, 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 16.02A Burden of Proof in Negligence Cases.

History

M Civ JI 16.04 replaced SJI 21.03. Added September 1980. Amended January 2020.

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 proving:

(a) that the defendant was negligent in one or more of the ways claimed by the plaintiff as stated to you in these instructions

(b) that the plaintiff [ was injured / sustained damages ]

(c) that the negligence of the defendant was a proximate cause of the [ injuries / damages ] to the plaintiff

Your verdict will be for the plaintiff on [ his / her ] claim, if the plaintiff has proved all of those elements. Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.

† (The defendant has the burden of proving 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 proving 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 ].

As to the defendant’s counterclaim, [ he / she ] has the burden of proving:

(a) that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions

(b) that the defendant [ was injured / sustained damages ]

(c) that the negligence of the plaintiff was a proximate cause of the [ injuries / damages ] to the defendant

Your verdict will be for the defendant on [ his / her ] counterclaim if the defendant has proved all of those elements. Your verdict will be for the plaintiff if the defendant has failed to prove any one of those elements.

† (The plaintiff has the burden of proving 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 cause of the [ injuries / damages ] to the defendant.)

‡ (The plaintiff has the burden of proving that [ name of nonparty ] was negligent, and that the negligence of [ name of nonparty ] was a proximate cause of the [ injuries / damages ] to the defendant.)

† (If your verdict is for the defendant, then you must determine the percentage of fault for each party or nonparty whose negligence was a proximate cause of defendant’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 defendant’s [ injuries / damages ].)

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.

† (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 ].

Comment

The 2013 amendment changed “proximate contributing cause” to “proximate cause” in two places. The new paragraphs addressing the defendant’s burden of proof are taken from M Civ JI 16.08, now M Civ JI 16.02A.

History

M Civ JI 16.05 is a revision of SJI 21.04. Amended September 1980. Amended May 2013. Amended January 2020.

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.

[ Name of third-party plaintiff ] has the burden of proving:

(a) 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

(b) 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 proving 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 tortfeasors:

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. MCL 600.2956.

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. Amended January 2020.

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.

This instruction was renamed and renumbered to be M Civ JI 16.02A.