M Civ JI 45.01 Wrongful Death - Explanation of Statute

We have a law known as the Wrongful Death Act. This law permits the personal representative of the estate of a deceased person to bring an action whenever the death of a person or injuries resulting in the death of a person have been caused by the [ wrongful act / negligence ] of another. In this case, [ name of plaintiff ], the personal representative of the estate of [ name of decedent ], the deceased, is suing [ name of defendant ], the defendant. [ Name of plaintiff ] is representing the [ estate / surviving spouse / next of kin ] of the deceased, [ namely [ name of surviving spouse ] / namely [ name of next of kin ] ]. They are the real parties in interest in this lawsuit and in that sense are the real plaintiffs, whose damages you are to determine if you decide for the personal representative of the estate of [ name of decedent ].

Note on Use

In In re Ellen Combs, ___ Mich App ___ (July 24, 2003), the Court of Appeals held the phrase “children of the deceased’s spouse,” in MCL 600.2922(3)(b) does not include children of a spouse who predeceases the plaintiff’s decedent. Leave to appeal to the Michigan Supreme Court has been sought.

Comment

The instruction is based on MCL 600.2922.

This statute, together with MCL 600.2921, combines into one cause of action damages suffered by a decedent prior to his death and damages suffered by others as a result of such death.

Under this statute an action may be brought for the death of a viable fetus. O’Neill v Morse, 385 Mich 130; 188 NW2d 785 (1971). An action may be maintained for an interspousal tort resulting in death. Mosier v Carney, 376 Mich 532; 138 NW2d 343 (1965). Action will also lie if the tort-feasor is dead. In re Olney’s Estate, 309 Mich 65; 14 NW2d 574 (1944).

History

M Civ JI 45.01 was SJI 32.01.