A Plaintiff must satisfy four elements to successfully recover in a negligence

action:(1) a duty owed to plaintiff by defendants; (2) breach of this duty by

defendant; (3) damages; and (4) that the breach was a proximate cause of the

damages.

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Michigan law does not speak in terms of negligence per se. Rather, "violation of a

penal statute creates a prima facie case of negligence from which the jury may draw

an inference of negligence, but it does not establish negligence per se."   Furthermore,

while "a party's violation of a statute creates a rebuttable presumption of negligence,

this presumption can be rebutted by any legally sufficient excuse."

However, in some instances the penal statute itself may explicitly create civil

liability. If it does not, "a court in its discretion may either adopt the legislative

standard or retain the common-law reasonable person standard of care".

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The Owners’ Liability Act provides that the owner of a motor vehicle will be held

liable for injuries caused by another's operation of the vehicle with the express or

implied consent or knowledge of the owner.  The statute "is not limited by the common

law doctrine of respondeat superior."  Therefore, an owner-employer is held liable for any

damages caused by an employee-driver’s negligence regardless of whether the driver's actions

fell within the course and scope of employment. However, where an owner is liable to an

injured party solely as a result of the Owners’ Liability Act, and the owner is not the driver's

employer, the owner is then entitled to indemnification from the employer.

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In practice, the doctrine of respondeat superior is of little import in many Michigan

automobile negligence cases because Michigan has enacted a statute imposing strict

liability on the owner of a vehicle in most circumstances.

However, in cases in which the doctrine of respondeat superior applies, a plaintiff

must prove that the actual tort-feasor was an employee of the defendant and that the

tort-feasor was acting within the scope of his employment.  An employer may be liable

for the tortious acts of the employee, whether intentional or not, if such acts were

committed in the course of and within the employee’s scope of employment.

Michigan uses the "control" test to determine the employee’s "master" at the time of

the accident. The issue is whether the employee continues to be under the direction

and control of the employee’s original master or whether he has come under the

control of the party to which he was lent or hired, or who requested his services. In

deciding this issue, the court will examine who had the right to control the activities

of the person. To escape liability, the original master must resign full control of the

employee.

In addressing when a person is an independent contractor or an employee, the court

will use the economic reality test. Some factors to be examined are: control over the

worker’s duties; payment of wages; hiring, firing, and disciplining authority; and the

relationship of the performance of the duties to the alleged employer ’s enterprise.

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An employer may be liable to a third party for its negligence in hiring or retaining an

employee who is incompetent or unfit.  The burden is on the party seeking to demonstrate

 that the employer knew or should have known of the employee’s lack of fitness.

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6. Negligent Infliction of Emotional Distress

Under Michigan law, damages may be recovered where "a definite and objective

physical injury is produced as a result of emotional distress proximately caused by

the defendant's negligent conduct." even in the absence of any physical impact.

The defendant's standard of conduct is measured by reactions to be expected of normal

persons and, absent specific knowledge of a plaintiff's unusual sensitivity, the defendant

will not be held liable for injuries to a hypersensitive plaintiff where a normal individual

would not be affected under the same set of circumstances.  The action permitted

is in effect one for mental anguish, where under the facts mental anguish must be

manifested as a physical injury.

Furthermore, family members may recover for mental distress caused when another

immediate family member is injured in their presence or when the family member

arrives at the accident "fairly contemporaneously" with the accident.  However, another panel

of the Court of Appeals strictly required that the parent actually witness the accident.

Wrongful death actions in Michigan are governed by statute. All wrongful death

actions must be brought by, and in the name of, the personal representative of the

estate of the decedent.  The statute also specifies those persons who may be entitled to

damages, namely, the family members and/or devisees under the decedent’s will, or those

persons to whom the estate would pass via intestate succession.

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Extra-contractual liability refers to the exposure, beyond the policy limits, an

insurance company can face if it fails to act in good faith in defending or settling a

claim within the insured’s policy limits. This liability arises out of the common-law

duty of a party to act in good faith in carrying out its contractual obligations. The

defendant has shown bad faith when it has acted with an "arbitrary, reckless,

indifferent, or intentional disregard of the interests of the person owed a duty."

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B. STATUTE OF LIMITATIONS

An action to recover damages for injury to a person or property must be brought

within three years after the time of the injury.

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The statute of limitation applicable to the theory of liability (e. g., negligence)

governs wrongful death claims. However, Michigan law contains a savings

provision, which provides that if a person dies before the period of limitations has

run or within 30 days after the period of limitations has run, an action which survives

by law may be commenced by the personal representative of the deceased person at

any time within two years after letters of authority are issued, even though the period

of limitations has otherwise run. However, an action brought in this manner cannot

be brought later than three years after the period of limitations has run.

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An action for breach of contract must be brought within six years of the accrual of

the claim.  As a bad-faith claim sounds in contract and not tort, the statute of limitations for

contract actions would apply.  Uninsured/underinsured claims are also treated as

contract claims and are generally subject to the six-year statute of limitations.

However, the parties to the insurance policy may contract to shorten the limitations

period.

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Michigan has a no-fault insurance system that governs motor vehicle accidents. In

order to establish a prima facie case for damages in addition to those recoverable

under the no-fault system, a plaintiff must meet an enumerated threshold of injury.

In order to meet this threshold, the plaintiff injuries must constitute (1) death, (2) a

serious impairment of a bodily function, or (3) a permanent, serious disfigurement.

Even if a plaintiff meets this threshold, only economic damages (i.e. allowable

expenses, work loss, and survivor's loss) that are ongoing for an excess of three years

are recoverable in a third-party suit.  Punitive damages are not recoverable. 

Additionally, recovery may be absolutely barred in some instances.

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2. Damages Recoverable In A Wrongful Death Action

The Wrongful Death Act provides that "the court or jury may award damages as the

court or jury shall consider fair and equitable, under all the circumstances including

reasonable medical, hospital, funeral, and burial expenses for which the estate is

liable; reasonable compensation for the pain and suffering, while conscious,

undergone by the deceased person during the period intervening between the time of

the injury and death; and damages for the loss of financial support and the loss of the

society and companionship of the deceased."

Michigan law does not allow for recovery of punitive damages. Damages cannot be

awarded to punish a defendant, but rather only to compensate the plaintiff.  In some instances,

"exemplary" damages are allowed. These may only be awarded to compensate the

plaintiff for his mental injuries arising out of his humiliation, sense of outrage, and

indignity, which resulted from willfully inflicted injuries.   However; the Michigan Supreme

Court has held that exemplary damages are a type of mental anguish damages, so that a plaintiff

is not entitled to an award of both exemplary damages and damages for mental anguish or

suffering.

Punitive damages are not recoverable in Michigan. Therefore, this section is

inapplicable.

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The court will adjust a verdict against a non- settling defendant by setting off any

settlement amount, and then deducting the plaintiff ’s comparative negligence from

the remaining amount.

For example, assume that a plaintiff sues two defendants, and one settles for $5,000.

After trial, the jury awards the plaintiff $30,000, but finds that she was 10%

comparatively negligent. The court would then reduce the award of $30,000 by the

settlement amount ($5,000). This amount ($25,000, plus any interest that would be

due) would be further reduced by the plaintiff ’s comparative negligence (10%, or

$2,500), for an award against the second defendant of $22,500.  Also, a settling defendant

is not liable for claims of contribution by non-settling defendants.  Conversely, a settling defendant

cannot obtain contribution from other defendants, unless all of the following apply: the liability of

the other defendant is extinguished by the settlement, a reasonable effort to notify the other defendant

of the settlement negotiations was made, the other defendant had a reasonable opportunity to participate

in the settlement negotiations, and the settlement was made in good faith.

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Michigan is a comparative negligence jurisdiction. In 1996, Michigan changed from

a pure comparative fault system to one that is more beneficial to defendants. Most

importantly, if the plaintiff is found to be more than 50% at fault, then recovery of

non-economic damages is barred.

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Additionally, "It is an absolute defense in an action for the death of an individual or

for injury to a person or property that the individual upon whose death or injury the

action is based had an impaired ability to function due to the influence of

intoxicating liquor or a controlled substance, and as a result of that impaired ability,

the individual was 50% or more the cause of the accident or event that resulted in the

death or injury."  If the intoxicated individual was less than 50% the cause of the accident or event,

an award of damages shall be reduced by that percentage.  The Michigan Court of Appeals

recently held that "event" includes the decision to drink, become intoxicated, or ride

with an intoxicated driver.  In other instances, the pure comparative fault system applies.

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A recent change to the Judicature Act generally abolishes joint liability in actions

based on tort or other legal theories seeking damages for personal injury, property

damage or wrongful death. The fact-finder is asked to make special findings of the

fault of "all persons that contributed to the death or injury."  A percentage of fault is allocated

to all parties who contributed to the injury whether they were or could have been named as parties.

Absent special circumstances, a party cannot be liable for damages in an amount greater

than its percentage of fault.  The abolishment of joint liability does not apply in actions

where the defendant’s acts constitute certain crimes involving alcohol or drugs, or where gross

negligence is an element of the crime.

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Michigan recognizes the following affirmative defenses: comparative negligence,

payment, release, satisfaction, discharge, existence of an arbitration agreement,

license, fraud, duress, estoppel, statute of frauds, statute of limitations, immunity

granted by law, want or failure of consideration, lack of jurisdiction, failure to state a

claim upon which relief can be granted, and failure to mitigate damages.

Affirmative defenses must be stated, under a separate and distinct heading, in a

party’s responsive pleading (usually the answer to the complaint).

There is a danger of waiver if the defenses are not stated.

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As explained in Subsection C.1. above, a plaintiff in a motor vehicle case must meet

an enumerated threshold of injury to recover damages in addition to those

recoverable under the no-fault insurance system. Therefore, a defendant should

assert the following defenses under the No Fault Act regarding the extent of the

plaintiff ’s injuries: the plaintiff has not suffered (1) death, (2) a serious impairment

of a bodily function, or (3) a permanent, serious disfigurement.  A failure by the plaintiff

to prove that he/she meets one of these criteria is fatal to the

action.  A defendant should also plead that the plaintiff was more than 50% at fault for the

accident and did not have the proper no-fault insurance in effect at the time of the

accident, as either of these also will defeat the plaintiff ’s claim. Michigan law

provides that a defendant can have an award against it reduced by up

to five percent for a plaintiff ’s failure to use a seat belt.

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Michigan has a rule of evidence to address impeachment of witnesses with

evidence of a conviction of a crime. The Rule provides that, in civil cases,

evidence of a conviction of a crime "shall not" be admitted unless it is brought

out on cross-examination and (1) the crime had an element of "dishonesty or

false statement" or (2) the crime was a theft punishable by more than one year in

prison and "the court determines that the evidence has significant probative value

on the issue of credibility . . ." The Rule also provides for the manner in which the

Court is to analyze the conviction to determine its probity: "for purposes of

the probative value determination . . . the court shall consider only the age of

the conviction and the degree to which a conviction of the crime is indicative

of veracity." There is a per se rule that evidence of a conviction is

inadmissible if it is to be used more than 10 years after the date of the

conviction, or 10 years after the release of the witness from confinement,

whichever is later.  Crimes that have been pardoned are not admissible,

unless the person has thereafter been convicted of another serious crime.

It has been held that it is improper to introduce a witness’s past driving

record for impeachment when the direct examination had focused solely on

the accident at issue. Therefore, the courts have ruled, a driver's record can

be excluded on the grounds that it has no bearing on the subject accident. The

court stated that, to do otherwise "would reduce a negligence action to a

battle of driving records."

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i. A finding of guilt on a specific intent crime is conclusive on the

ii. A plea of nolo contendere is generally inadmissible in a civil trial, except that: "to

iii. The Michigan Supreme Court has held that: "where a civil case

criminal conviction unfair, i.e., substantially more prejudicial than

iv. The amount of alcohol or the presence of a controlled substance in a

The applicable rule provides that privileged information is not

discoverable. Information which is prepared in anticipation of litigation or for trial

is only discoverable upon a showing "that the party seeking discovery has substantial

need of the materials in the preparation of the case and is unable without undue

hardship to obtain the substantial equivalent of the materials by other means."(protective orders).

In practice, because Michigan courts are committed to open and far-reaching discovery, most

witness statements will be ordered to be produced.

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Court Rules allow a party to obtain discovery of "the existence and contents

of an insurance agreement under which a person carrying on an insurance business

may be liable to satisfy par t or all of a judgment . . . or to indemnify or reimburse

for payments made to satisfy the judgment. Information concerning the insurance

agreement is not by reason of disclosure admissible at trial." In fact, under

information regarding insurance is not admissible at trial and Michigan cases have

held that a party’s disclosure of insurance information during trial is grounds for a mistrial.

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Michigan law favors broad, effective, far-reaching discovery prior to trial, in order to

expedite justice and avoid surprise at trial.

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The court is given discretion to issue "any order that justice requires to protect a

party or person from annoyance, embarrassment, oppression, or undue burden or

expense."  Discovery rights are subject to the court’s "right and

duty to control the flow of litigation."

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Michigan law states that any entity having the exclusive use of a vehicle under a

lease for more than 30 days is the vehicle’s owner.  An owner is liable for the negligent

operation of its vehicle, unless it is being driven without the owner ’s "express or implied

consent of knowledge." A party’s consent may be implied from a lessee’s

failure to remove its identifying placards or to request, pursuant to ICC regulations, a

receipt for surrender of the vehicle. Given this implied consent, it is immaterial

whose business or interests were being pursued at the time of the accident.

Michigan has adopted the Federal "statutory employee" doctrine, by which a driver

is presumed to be an employee of the carrier.

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Michigan has no special laws dealing with this issue. Therefore, general principles

of negligence would apply.

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Michigan law provides that: "A carrier has a lien on the goods covered by a bill of

lading for charges subsequent to the date of its receipt of the goods for storage or

transportation ... and for expenses necessary for preservation of the goods. . ."

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J. OFFERS OF JUDGMENT

Offers of judgment are governed by Michigan Court Rule, which provides that

a party has until 28 days before trial to serve the other party with a written offer to

stipulate to a judgment for all or any portion of the case.

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A party that rejects an offer of judgment may be liable for costs, if the final, adjusted

verdict is more favorable to the non-settling party. On the other hand, a party that

rejects an offer of judgment may be liable for costs if the final, adjusted verdict is

less favorable than the offer.  The grant of attorney fees is the rule, not the exception.

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Uninsured/underinsured motorist coverage is available, though not required. An

insurer which pays benefits to an insured under an underinsured cover age provision

is not entitled to reduce the amount paid because the insured has also received

Workers’ Compensation benefits.  Uninsured/underinsured claims are contract claims

and are controlled by the language of the insurance policy and the language is strictly construed.

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Recently, there were several significant changes which impact this area of law.

Michigan mandates a mediation procedure for all claims involving money damages.

Under this procedure, the parties submit mediation summaries arguing their positions

to a three-attorney panel, which makes an evaluation of the worth of the case. The parties then

have 28 days to accept or reject the mediation panel’s award. A failure to answer is deemed

a rejection. If all parties accept the mediation, judgment is entered in the amount of the award, which

is deemed to include all costs, fees, and interest. Where there is more than one

plaintiff and one defendant, judgment is entered as to the opposing parties that

accepted the mediation. A party that rejects a mediation may be liable for costs if

the party does not improve its position by more than 10% at trial.

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Michigan is the premier no fault state. Actions which arise out of the operation of a

motor vehicle as a motor vehicle are governed by the No Fault Act.  One of the most

significant provisions of the Act regards the necessity that a plaintiff’s injury surpass a

statutory threshold; that is, that the "injured person has suffered death, serious impairment

of a body function, or permanent serious disfigurement." Recent amendments to the Act have

taken the determination of what constitutes a serious impairment of body function out of the

province of the jury, with a few limited exceptions.  Cases in which the court determines either

that there are no factual disputes involving the "nature and extent" of the injuries

alleged, or that the issue of serious impairment is not material to outcome of the

cause of action, require that the issue of serious impairment be decided by the court.

However, in the case of a closed-head injury, a jury must decide the case if "a

licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head

injuries testifies under oath that there may be some serious neurological

injury."

The factors a court should consider in making such a determination include, but are

not limited to: (1) The extent of the injury; (2) the treatment required; (3) the

duration of disability; and (4) the extent of residual impairment and prognosis for

eventual recovery.   Note that the permanency of the injury does not absolutely determine

its seriousness for the purposes of recovery in tort. In addition, the statutory amendments

require that the serious impairment be "an objectively manifested impairment of an important

body function that affects the person’s ability to lead his or her normal life."  The

importance of the body function and the extent to which it interferes with a

plaintiff’s daily activities comprises a part of the court’s threshold determination.

Persons who do not have the required insurance in effect are barred from recovery,

as are parties who are found to be more than 50% at fault.

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Editors Note: This information is intended for informational purposes.  Michigan law is constantly changing and is subject to judicial interpretation.  Specific or unique situations may result in varying application of Michigan law.  Always rely on professional legal assistance should questions arise.

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