M Civ JI 25.22 Implied Warranty - Burden of Proof

The plaintiff has the burden of proving:

(a) that the [ name of product ] was not reasonably fit for the [ use / uses ] or [ purpose / purposes ] anticipated or reasonably foreseeable by the defendant, in one or more of the ways claimed by the plaintiff

(b) that the [ name of product ] was not reasonably fit for the [ use / uses ] or [ purpose / purposes ] anticipated or reasonably foreseeable by the defendant at the time it left the defendant’s control

(c) that [ plaintiff / plaintiff’s decedent ] [ was injured / sustained damage ]

(d) that the [ description of claimed defect ] was a proximate cause of the [ injuries / damages ] to [ plaintiff / plaintiff’s decedent ].

*(Your verdict will be for the plaintiff if the plaintiff has proved all of those elements.)

*(Your verdict will be for the defendant if the plaintiff has failed to prove any one of those elements.)

Note on Use

This instruction should not be used in an action against a manufacturer for an alleged defect in the design of its product. Prentis v Yale Manufacturing Co, 421 Mich 670; 365 NW2d 176 (1984). Additionally, this instruction should not be used in an action against a non-manufacturing seller because breach of implied warranty is not a separate theory upon which to bring such an action. Curry v Meijer, Inc., 286 Mich App 586 (2009).

*These paragraphs are not necessary if a Special Verdict Form is used.

For cases filed on or after March 28, 1996, if comparative fault or comparative negligence are at issue, M Civ JI 25.45 should be used. MCL 600.6304.

Comment

For the quantum of proof required to demonstrate a defect see Bronson v J L Hudson Co, 376 Mich 98; 135 NW2d 388 (1966); Hertzler v Manshum, 228 Mich 416; 200 NW 155 (1924); Accetola v Hood, 7 Mich App 83; 151 NW2d 210 (1967); Martel v Duffy-Mott Corp, 15 Mich App 67; 166 NW2d 541 (1968); and Shirley v Drackett Products Co, 26 Mich App 644; 182 NW2d 726 (1970).

History

M Civ JI 25.22 was SJI 25.23. Amended November 1983, October 1984, June 2011, January 2020.