M Civ JI 42.05 Allocation of Fault of Parties and Identified Nonparties

If you find that *(at least one) defendant and an identified nonparty are at fault, then you must allocate the total fault among all the parties and identified nonparties who are at fault.

In determining the percentage of fault of each person, you must consider the nature of the conduct of each person and the extent to which each person’s conduct caused or contributed to the plaintiff’s injury. The total must add up to 100 percent.

Note on Use

*This phrase should be used if there is more than one defendant in the case.

This instruction should be used only for actions filed on or after March 28, 1996, that are based on tort or another legal theory seeking damages for personal injury, property damage, and wrongful death and that involve fault of more than one person including an identified nonparty. See MCL 600.2957, .6304, as amended by 1995 PA 161 and 249. For the effective date of the 1995 amendments, see 1995 PA 161, §3; and 1995 PA 249, §3.

A party who wishes to have fault of a nonparty assessed under MCL 600.6304 must file notice designating the nonparty within 91 days after filing its first responsive pleading; any filing after that date must be made by motion with a showing that facts underlying the notice could not, with reasonable diligence, have been known earlier. MCR 2.112(K)(3)(c). The parties may not stipulate to forgo the notice provision of this rule. Staff v Marder, 242 Mich App 521; 619 NW2d 57 (2000). (The rule of procedure stated in MCR 2.112(K) takes precedence over the conflicting statutory provision, MCL 600.2957(2).)

If the defendants caused factually separable injuries, M Civ JI 41.02 Damages Where There Is No Allocation of Fault Between Defendants should be used.

In cases of vicarious liability, this instruction may need to be modified or omitted. Fault may not be allocated between two parties, one of whom is vicariously liable for the fault of the other.

Comment

MCL 600.2957, .6304. The requirement that the jury allocate fault may be waived by agreement of all the parties. MCL 600.6304(1).

The definition of “fault” is: “As used in this section, ‘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). The definition of “fault” was added by 1995 PA 249.

History

M Civ JI 42.05 was added October 2001.