contributory negligence doctrine in Michigan

2023Commentators had long criticized the contributory- negligence rule for “ ‘visit[ing] the entire loss caused by the fault of two parties on one of them alone . . . .’ ” Kirby v Larson, 400 Mich 585, 622 ; 256 NW2d 400 (1977), quoting Prosser, Comparative Negligence, 51 Mich L Rev 465, 469 (1953).

2023Commentators had long criticized the contributory- negligence rule for “ ‘visit[ing] the entire loss caused by the fault of two parties on one of them alone . . . .’ ” Kirby v Larson, 400 Mich 585, 622 ; 256 NW2d 400 (1977), quoting Prosser, Comparative Negligence, 51 Mich L Rev 465, 469 (1953).

2023At issue is “the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.” Armstrong v Best Buy Co, Inc, 99 Ohio St 3d 79, 82; 788 NE2d 1088 ; 2003-Ohio-2573 (2003).

2023At issue is “the nature of the dangerous condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.” Armstrong v Best Buy Co, Inc, 99 Ohio St 3d 79, 82; 788 NE2d 1088 ; 2003-Ohio-2573 (2003).

2023But we nowhere said that the obviousness of the danger was relevant to contributory negligence. 7 And again, because either a no-duty rule or a contributory negligence rule led to the same result, there was no need to specify the theoretical grounds for why the obviousness of the danger was relevant. injury to the invitee.” Quinlivan, 395 Mich at 261 .

2023But we nowhere said that the obviousness of the danger was relevant to contributory negligence. 7 And again, because either a no-duty rule or a contributory negligence rule led to the same result, there was no need to specify the theoretical grounds for why the obviousness of the danger was relevant. injury to the invitee.” Quinlivan, 395 Mich at 261 .

1990(Emphasis in original.) Although in Placek v Sterling Heights, 405 Mich 638 ; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979), we abolished the contributory negligence doctrine as an absolute bar to a negligent plaintiff’s recovery, comparative negligence principles now apply in rescue cases.

1990(Emphasis in original.) [27] Although in Placek v Sterling Heights, 405 Mich 638 ; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979), we abolished the contributory negligence doctrine as an absolute bar to a negligent plaintiff's recovery, comparative negligence principles now apply in rescue cases.

1982In this case we are required to determine the effect of the doctrine of comparative negligence 1 on our decisions in Funk v General Motors Corp, 392 Mich 91 ; 220 NW2d 641 (1974), and Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615 ; 281 NW2d 291 (1979). 2 Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense.

1982In this case we are required to determine the effect of the doctrine of comparative negligence 1 on our decisions in Funk v General Motors Corp, 392 Mich 91 ; 220 NW2d 641 (1974), and Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615 ; 281 NW2d 291 (1979). 2 Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense.

2026A jury instruction is not warranted where it is not supported by the evidence, People v Mills, 450 Mich 61, 81 , 82 n 15; 537 NW2d 909 (1995), and defense counsel cannot be ineffective for failing to advance a meritless argument, People v Ericksen, 288 Mich App 192, 201 ; 793 NW2d 120 (2010).

2026A jury instruction is not warranted where it is not supported by the evidence, People v Mills, 450 Mich 61, 81 , 82 n 15; 537 NW2d 909 (1995), and defense counsel cannot be ineffective for failing to advance a meritless argument, People v Ericksen, 288 Mich App 192, 201 ; 793 NW2d 120 (2010).

2026A jury instruction is not warranted where it is not supported by the evidence, People v Mills, 450 Mich 61, 81 , 82 n 15; 537 NW2d 909 (1995), and defense counsel cannot be ineffective for failing to advance a meritless argument, People v Ericksen, 288 Mich App 192, 201 ; 793 NW2d 120 (2010).

2026A jury instruction is not warranted where it is not supported by the evidence, People v Mills, 450 Mich 61, 81 , 82 n 15; 537 NW2d 909 (1995), and defense counsel cannot be ineffective for failing to advance a meritless argument, People v Ericksen, 288 Mich App 192, 201 ; 793 NW2d 120 (2010).

2022That is why Piskorowski simply does not stand for the proposition for which the circuit court cites it. 3 “The flagman’s duty is to know of the approach of trains, and to give timely warning to all persons attempting to cross the railroad track, and the public have [sic] a right to rely upon a reasonable performance of that duty.” Richmond v The Chicago & Western Mich R Co, 87 Mich 374, 382 ; 49 NW 621 (1891) (quotation marks and citation omitted). 4 When analyzing duty, the difference between a hand-car powered by four men and traveling at slow speed and a modern-day locomotive cannot be disr

2022That is why Piskorowski simply does not stand for the proposition for which the circuit court cites it. 3 “The flagman’s duty is to know of the approach of trains, and to give timely warning to all persons attempting to cross the railroad track, and the public have [sic] a right to rely upon a reasonable performance of that duty.” Richmond v The Chicago & Western Mich R Co, 87 Mich 374, 382 ; 49 NW 621 (1891) (quotation marks and citation omitted). 4 When analyzing duty, the difference between a hand-car powered by four men and traveling at slow speed and a modern-day locomotive cannot be disr

2017This Court distinguished Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689 ; 272 NW2d 518 (1978), a case decided under the now- abrogated doctrine of contributory negligence, and reasoned: The issue in the case at bar is not whether plaintiff was comparatively negligent in failing to observe and avoid the crushed grapes or grape residue on defendants’ floor.

2017This Court distinguished Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689 ; 272 NW2d 518 (1978), a case decided under the now- abrogated doctrine of contributory negligence, and reasoned: The issue in the case at bar is not whether plaintiff was comparatively negligent in failing to observe and avoid the crushed grapes or grape residue on defendants’ floor.

2012Jimkoski v Shupe, 282 Mich App 1 , 8 n 3; 763 NW2d 1 (2008).

2012Jimkoski v Shupe, 282 Mich App 1 , 8 n 3; 763 NW2d 1 (2008).

2003Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 523 , 629 N.W.2d 384 (2001); Grummel, supra at 77 , 292 N.W. 562 .

2003Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 ; 629 NW2d 384 (2001); Grummel, supra at 77 .

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Michigan has recognized the inapplicability of a contributory negligence defense in these cases for over a hundred years: The defendants being guilty of reckless negligence under the circumstances disclosed by the testimony in running their train without keeping a proper lookout, and in consequence thereof having run over plaintiff, and injured her, the question of contributory negligence does not arise, even had the plaintiff been of that age at which the law would have imposed upon her the duty of exercising due care to avoid injury. [Battishill v Humphreys, 64 Mich 514, 521 ; 38 NW 581 (188

1994Michigan has recognized the inapplicability of a contributory negligence defense in these cases for over a hundred years: The defendants being guilty of reckless negligence under the circumstances disclosed by the testimony in running their train without keeping a proper lookout, and in consequence thereof having run over plaintiff, and injured her, the question of contributory negligence does not arise, even had the plaintiff been of that age at which the law would have imposed upon her the duty of exercising due care to avoid injury. [Battishill v Humphreys, 64 Mich 514, 521 ; 38 NW 581 (188

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1994Nearly identical language appeared in House Legislative Analysis Section, HB 5163, First and Second Analyses. [18] Both of the Senate Analysis Section analyses refer to language in the original and the amended Senate bills. [19] While Senator Pollack, using her constitutional right to protest, Const 1963, art 4, § 18, mentioned the gross negligence standard, she did not mention or attach any significance to the proximate cause requirement. [1] This Court has repeatedly recognized that legislative action, past and present, on the issue of governmental immunity "evidences a clear legislative jud

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1990Sweetman, supra, p 26 . [28] See, e.g., Parks v Starks, 342 Mich 443 ; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54 ; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634 ; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). [29] Sweetman, supra . [30] We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. [31] MCR 2.613(A).

1987Following this change, the Court of Appeals reviewed the rule barring admission of the plaintiff's nonuse of a seat belt under the doctrine of comparative negligence in Schmitzer v Misener-Bennett Ford, 135 Mich App 350 ; 354 NW2d 336 (1984), lv den 422 Mich 852 (1985).

1987Following this change, the Court of Appeals reviewed the rule barring admission of the plaintiff's nonuse of a seat belt under the doctrine of comparative negligence in Schmitzer v Misener-Bennett Ford, 135 Mich App 350 ; 354 NW2d 336 (1984), lv den 422 Mich 852 (1985).

1982Such a position might allow a manufacturer to escape its duty of due care * * *: " 'It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.’ ” Quoting Bexiga v Havir Mfg Corp, 60 NJ 402, 412; 290 A2d 281 (1972).

1982Such a position might allow a manufacturer to escape its duty of due care * * *: "`It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.'" Quoting Bexiga v Havir Mfg Corp, 60 NJ 402, 412; 290 A2d 281 (1972).

1982In this case we are required to determine the effect of the doctrine of comparative negligence 1 on our decisions in Funk v General Motors Corp, 392 Mich 91 ; 220 NW2d 641 (1974), and Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615 ; 281 NW2d 291 (1979). 2 Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense.

1982In this case we are required to determine the effect of the doctrine of comparative negligence 1 on our decisions in Funk v General Motors Corp, 392 Mich 91 ; 220 NW2d 641 (1974), and Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615 ; 281 NW2d 291 (1979). 2 Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense.

1981The defense has been recognized in cases in which the patient has (1) failed to follow the doctor’s or nurse’s instructions; or (2) refused suggested treatment; or (3) given the doctor false, incomplete, or misleading information concerning symptoms. * * * "Both courts and textwriters have emphasized, however, that the availability of a contributory negligence defense in a malpractice case is limited because of the disparity in medical knowledge between the patient and his doctor and because of the patient’s right to rely on the doctor’s knowledge and skill in the course of medical treatment.