M Civ JI 13.09 Effect of Parent’s Negligence on Claim of Child

You must not consider whether there was negligence on the part of [ name of child ]’s parents, because, under the law, any negligence on the part of the parents cannot affect a claim on behalf of the child.

Note on Use

There are no reported decisions on the impact, if any, of MCL 600.2957 in a case involving a claim for a child’s injury. If the court determines that a parent can be named as a nonparty under MCL 600.2957, then this instruction should not be given. The cases discussed in this use note and the comment were all decided prior to the enactment of MCL 600.2957.

This is a cautionary instruction that is to be used only in a case involving a claim on behalf of an injured child in which the parent’s negligence is not a defense to the child’s claim but the parent’s negligence has been improperly injected into the lawsuit in the evidence or in argument of counsel. Conners v Benjamin I Magid, Inc, 353 Mich 628; 91 NW2d 875 (1958); Elbert v Saginaw, 363 Mich 463; 109 NW2d 879 (1961). However at least one Michigan case has held that a cautionary instruction will not cure the error of injecting parental negligence in a lawsuit in which it is not a defense. Lapasinskas v Quick, 17 Mich App 733; 170 NW2d 318 (1969).

See the comment below for Michigan case law on the legal effect of a parent’s negligence in cases involving the injury or death of a child.

Comment

Prior to the adoption of comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), Michigan cases held that a parent’s negligence may not be imputed to a child so as to bar the child’s cause of action for his or her injuries. Conners; Elbert; Nielsen v Henry H Stevens, Inc, 359 Mich 130; 101 NW2d 284 (1960).

In a case involving a claim on behalf of a child for the child’s injuries that was consolidated for trial with the parent’s claim for consequential damages due to injury to the child, the court distinguished between the child’s case in which the parent’s negligence is not a defense and the parent’s cause of action for which the parent’s own negligence is a defense. Nielsen, 359 Mich at 133–137; 101 NW2d at 287–289 (concurring opinion of Justice Black). (Because of this distinction and the possibility of prejudicing the child’s case, Justice Black cautioned against the dangers of consolidation.)

The distinction in the treatment of parental negligence between the child’s cause of action and the parent’s cause of action has been applied in cases involving the death of a child. In a case in which the child did not die instantly, where the cause of action was for the child’s own damages prior to death (case brought under the former Survival Act), the court held that the mother’s negligence is not a defense even though the parents were the sole heirs and distributees of the child’s estate. Love v Detroit J & C R Co, 170 Mich 1; 135 NW 963 (1912). But where the cause of action was brought under the former Death Act for a parent’s consequential damages due to the death of a child, courts have held that a parent’s negligence is a defense, at least to the extent of his or her own recovery. Feldman v Detroit United R Co, 162 Mich 486; 127 NW 687 (1910); McCann v Detroit, 234 Mich 268; 207 NW 923 (1926); Flintoff v Muskegon Traction & Lighting Co, 208 Mich 527; 175 NW 438 (1919). See McCann for a discussion of the distinction between Death and Survival Act cases.

This distinction in the treatment of parental negligence in cases involving the death of a child survived both the consolidation of the former Death and Survival Acts into the Wrongful Death Act and the adoption of comparative negligence. In Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176; 475 NW2d 854 (1991), the court held that the parent’s negligence cannot reduce an award to the estate for the conscious pain and suffering of the child (even though such award will inure to the benefit of the parents), but the parent’s negligence can reduce a parent’s recovery for the loss of the deceased child’s services and society and companionship:

We conclude that the reasoning set forth in Feldman, McCann, and Nielsen is still persuasive; it remains in keeping with the objective of a fair apportionment of damages under the doctrine of comparative negligence. See Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). The parent’s comparative negligence is relevant under the wrongful death statute where recovery is sought for damages sustained by the parent because of the wrongful death of the child. However, the comparative negligence of the parent may not be imputed to the recovery attributable to the child’s damages.

Byrne, 190 Mich App at 189; 475 NW2d at 860.

History

M Civ JI 13.09 was SJI 11.04.