M Civ JI 12.02 Excused Violation of Statute

However, if you find that [ defendant / plaintiff ] used ordinary care and was still unable to avoid the violation because of [ state here the excuse claimed ], then [ his / her ] violation is excused.

If you find that [ defendant / plaintiff ] violated this statute and that the violation was not excused, then you must decide whether such violation was a proximate cause of the occurrence.

Note on Use

This instruction should be given immediately following M Civ JI 12.01 and only where the evidence would support a finding that a legal excuse existed.

Comment

See MRE 301 and cases collected in Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976). See also Klanseck v Anderson Sales & Service, Inc, 426 Mich 78; 393 NW2d 356 (1986).

Five categories of excused violations are indicated by Restatement (Second) of Torts §288 A, at 32–33:

(a) the violation is reasonable because of the actor’s incapacity;

(b) he neither knows nor should know of the occasion for compliance;

(c) he is unable after reasonable diligence or care to comply;

(d) he is confronted by an emergency not due to his own misconduct;

(e) compliance would involve a greater risk of harm to the actor or to others.

History

M Civ JI 12.01 and 12.02 were added September 1980. They replace SJI 12.01 through 12.04.