M Civ JI 25.12 Express Warranty - Burden of Proof

The plaintiff has the burden of proving:

(a) that the defendant expressly warranted the product in one or more of the ways claimed by the plaintiff

(b) that the [ plaintiff / plaintiff’s decedent ] [ relied upon / or / was protected by ] the warranty

(c) that the product [ description of alleged failure to meet express warranty ]

(d) that the product [ description of alleged failure to meet express warranty ] at the time it left defendant’s control

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

(f) that the [ description of alleged failure to meet express warranty ] 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

In choosing between the alternatives of b, the Court shall be guided by MCL 440.2318.

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

Under prior law, there was an issue as to the applicability of comparative negligence in cases involving breach of express warranty. See In re Certified Questions (Karl v Bryant Air Conditioning Co), 416 Mich 558; 331 NW2d 456 (1982). 1995 PA 249 makes comparative fault the standard for all cases based on tort or another legal theory filed on or after March 28, 1996, which would include cases involving breach of express warranty. MCL 600.2957.

History

M Civ JI 25.12 was SJI 25.13. Amended October 1993. Amended January 2020.