M Civ JI 10.09 Presumption of Ordinary Care - Loss of Memory Case

[ If you find that / Since ] [ plaintiff / defendant ] has a loss of memory concerning the facts of this case and it was caused by the occurrence, you may infer that the [ plaintiff / defendant ] was not negligent. However, you should weigh all the evidence in determining whether the [ plaintiff / defendant ] was or was not negligent.

Note on Use

This instruction can be given only in a case involving negligence or a willful and wanton action, when one or both of the parties (or a person acting for one of the parties) is suffering from loss of memory related to injuries received in the accident.

In certain products liability actions, this instruction should not be used: “for a product that has been in use for not less than 10 years, the plaintiff, in proving a prima facie case, must do so without benefit of any presumption.” MCL 600.5805(12). For other circumstances in which this instruction may not be appropriate, see Note on Use to M Civ JI 10.08 and Comment below.

Comment

The above instruction is to be given in cases where either of the parties is suffering from loss of memory. Knickerbocker v Samson, 364 Mich 439, 448; 111 NW2d 113, 117–118 (1961), see also Shaw v Bashore, 353 Mich 31; 90 NW2d 688 (1958). The loss of memory must be related to injuries received in the accident. Thompson v Southern Michigan Transportation Co, 261 Mich 440, 446; 246 NW 174, 176 (1933). However, medical evidence does not necessarily have to be presented to prove the injury caused the amnesia. Knickerbocker.

In two cases involving claims of traumatic amnesia, the trial court’s refusal to give a presumption of due care instruction was upheld as a proper exercise of discretion. Tien v Barkel, 351 Mich 276; 88 NW2d 552 (1958); Holloway v Cronk, 76 Mich App 577; 257 NW2d 175 (1977).

History

Amended December 1987.