M Civ JI 10.08 Presumption of Ordinary Care - Death Case

Because [ name of decedent ] has died and cannot testify, you may infer that [ he / she ] exercised ordinary care for [ his / her ] safety *(and for the safety of others) at and before the time of the occurrence. However, you should weigh all the evidence in determining whether the decedent exercised due care.

Note on Use

This instruction can be given only in a case involving negligence or a willful and wanton action, when one or both of the parties (or a person acting for one of the parties) is deceased.

*The phrase in parentheses should be used if appropriate.

In certain circumstances, it may not be appropriate to use this instruction. Where there is clear, positive and credible evidence showing negligence by the deceased, this instruction should not be given. Potts v Shepard Marine Construction Co, 151 Mich App 19; 391 NW2d 357 (1986); see also Gillett v Michigan United Traction Co, 205 Mich 410; 171 NW 536 (1919). Also, MCL 600.5805(12) limits the use of presumptions in certain products liability actions: “for a product that has been in use for not less than 10 years, the plaintiff, in proving a prima facie case, must do so without benefit of any presumption.” In Johnson v White, 430 Mich 47, 49 n1; 420 NW2d 87, 88 n1 (1988), the Michigan Supreme Court addressed the issue of the trial court’s refusal to give an instruction on the presumption of due care and concluded:

Because the error was harmless, if error at all, we do not address the question whether the instruction on the presumption of due care, M Civ JI 10.08, remains viable where principles of comparative negligence are applied.

Comment

The presumption of ordinary care originally appeared in Teipel v Hilsendegen, 44 Mich 461, 462; 7 NW 82, 82 (1880).

Other cases dealing with this presumption include: Weller v Mancha, 351 Mich 50; 87 NW2d 134 (1957); Weller v Mancha (On Rehearing), 353 Mich 189; 91 NW2d 352 (1958); Hill v Harbor Steel & Supply Corp, 374 Mich 194; 132 NW2d 54 (1965); Bolser v Davis, 62 Mich App 731; 233 NW2d 845 (1975).

If plaintiff and defendant are deceased, then both are entitled to the presumption. Detroit Automobile Inter-Insurance Exchange v Powe, 348 Mich 548; 83 NW2d 292 (1957); Booth v Bond, 354 Mich 561; 93 NW2d 161 (1958).

This is a proper instruction even though the burden of proving contributory negligence is now on the defendant. Mack v Precast Industries, Inc, 369 Mich 439, 454; 120 NW2d 225, 232 (1963).

History

Amended December 1987.