M Civ JI 16.02A Burden of Proof in Negligence Cases

The plaintiff 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 damage ]

(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 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 den, 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.

M Civ JI 16.08 was renumbered to M Civ JI 16.02A and replaces M Civ JI 16.02, which was deleted in January 2020 because it only applied to cases filed on or before March 28, 1996.

History

M Civ JI 16.08 was added June 1997. Amended March 1999. Amended January 2020 (renumbered to be this instruction).