No matter where you live in the United States, your actions are governed by the rule of law. When your actions (or failure to act) harm another person or entity, the laws of negligence apply. We are all likely to be negligent at one point or another—it’s human nature. A roommate forgets to turn off the coffee pot when she goes to work. A neighbor procrastinates taking down a dead tree in the front yard close to the sidewalk. A driver doesn’t put on the turn signal. Many of these acts or omissions do not amount to much, but when they do and you suffer harm, you may have recourse through the rules of law for negligence in Michigan.
At Goodman Acker, we have been employing the theory of negligence––with our combined 150+ years of experience––to secure maximum compensation for our clients. If you have been wronged, injured, or otherwise harmed by another person’s act or failure to act when there’s a duty to do so, we know what to do. No case is too complex for our team of personal injury and car accident lawyers in Detroit, Dearborn, and the greater metropolitan areas. Here, we take a moment to explain how negligence laws in Michigan actually work so that you know what to expect.
The theory of negligence is codified in Michigan Compiled Laws, most of which are found in Chapter 600, Revised Judicature Act of 1961. Under negligence law, any claim must be filed in a timely fashion. For most personal injury claims or lawsuits, that means you must file within three years from the date the injury occurred. There are some exceptions that require you to file sooner or allow you to file later.
When to file a claim, however, is only one small, but important, part of the law. To recover compensation for an injury, a personal injury lawyer or wrongful death attorney must establish that your injury or the death of your loved one was caused by another person’s negligence, which is harder to do than it sounds. Below is a brief overview of the four elements of negligence.
There must be a legal duty or legal responsibility between the plaintiff and the defendant. A legal duty can be established in different ways, by showing, for example:
However, there are legal relationships that create a duty without having to show any of the above. Examples of these types of legal relationships include:
In some instances, landowners, homeowners, landlords, and renters may have a duty of care when they open the property up to the public or invite guests.
Identifying that there is a duty of care is the first part of this element. The second part is identifying what that duty of care is. For example, a primary care physician’s duty of care to a patient will differ from a surgeon’s duty of care.
The plaintiff must establish that the duty of care was breached. A breach occurs if the defendant did not act, under the circumstances, in a way a reasonable person would under the same or similar circumstances.
The plaintiff must establish that the breach of duty was the actual and proximate cause of the injury. What does this mean under the law? Actual cause is what many lawyers call “but for” cause, meaning that but for the defendant’s actions, the plaintiff wouldn’t have been injured. Proximate cause, a less direct standard, assesses the extent to which the defendant was responsible based on whether the risk was foreseeable, and the outcome of the actions.
Finally, the plaintiff must establish damages. Typically, only compensatory damages––medical bills, lost wages, loss of opportunity, damaged property, pain and suffering, mental distress, loss of enjoyment, loss of companionship –– are awarded. In rare cases, exemplary damages may be sought. Damages are established using evidence like:
So, if you have been injured, you want to save your bills, track lost wages, and record additional expenses. Take photos or draw a diagram of the scene of the accident. As soon as you can, write down everything you remember when it is still fresh. Describe your injuries and document long-term effects, like chronic pain, diminished mobility, cognitive or memory problems, and psychological distress.
With a solid understanding of the elements of negligence laws in Michigan, it’s time to understand how this theory works. The claimant has the burden to prove their claims while the defendant has the right to defend against those claims. The law operates as a structure inside of which the parties can build their own cases and negotiate a settlement or go to trial.
Proving negligence is the tricky part of negligence law in Michigan, the burden of which falls on the claimant or plaintiff. As above described, there are several elements of the theory of negligence, and each element must be proven by a preponderance of the evidence. This means that the evidence indicates it is more likely than not that the defendant caused your injury and is, therefore, liable for the costs associated with it. A jury, as the fact finder, must find that the defendant is more than 50% responsible.
In some personal injury or wrongful death cases, however, the burden requires a higher level than the preponderance of the evidence standard. When the victim seeks exemplary damages (commonly referred to as punitive damages), the plaintiff must prove that the defendant acted with malice, willful, and wanton misconduct or negligence. To prove the latter, the evidence must be clear and convincing. The clear and convincing evidence standard means there is a high probability that the alleged negligence occurred, and it is the defendant who is liable for it. This type of case is far more rare in Michigan. Most cases require a preponderance of the evidence (50%+1) to be proven.
We live in a country where the accused have a right to defend themselves, and that’s true in civil matters just as much as it is in criminal cases. As such, claims of negligence can be (and will be) challenged by the defendant.
In most personal injury and wrongful death cases, it’s typically the insurance company who is held liable for covering the costs of the injury or death. Insurance companies are for-profit entities, though, so they don’t want to pay out any more than they must. They’ll fight you on it. And they have tools they can use in their defense, like showing you contributed to the accident, showing you assumed the risk, or placing blame on another person or entity.
Does Michigan recognize contributory negligence? Not anymore.
Contributory negligence, when shown, is a complete bar to compensation. Michigan did adhere to this this standard up until the 1970s when the courts started applying the theory of comparative fault. Under this theory in Michigan, codified at M.C.L. § 600.2959, partial fault does not bar recovery unless a jury finds the plaintiff is more than 50% percent at fault.
Insurance companies will use anything against you to build a case that you were at fault and that it amounts to 50% or more.
Assumption of Risk
Does assuming the risk bar recovery? It can.
When a person engages in dangerous activities or fails to heed warnings and is injured or killed in the process, that assumption of the risk may be a defense that can bar recovery.
Under the assumption-of-risk defense, the defendant must show that:
Assumption of risk is often implied, but it can be express, i.e., you sign a waiver before participating in the activity.
Does an intervening act bar recovery? Mostly no, but it could.
Sometimes a defendant may try to claim that––after the defendant’s negligent action leading to your injury––an intervening cause occurred and contributed to the injury. The defendant will try to place blame on the person or entity responsible for intervening. If the intervening event is foreseeable, then the defendant is still liable. It’s when the intervening event is not foreseeable, which is known as a superseding cause, that the defendant has a good defense against liability.
Take a car accident. The defendant speeds through a red light and strikes the victim’s car. Because the victim’s car came to a sudden halt, another car struck the vehicle from back, causing the victim to suffer severe whiplash. The second car striking the victim’s car is foreseeable in this situation. Imagine, however, a tornado whipping through and throwing debris that strikes the victim and causes the victim to suffer severe, life-threatening injuries, including a leg amputation. That could be deemed a superseding cause, and so the defendant could have a defense.
In lawsuits based on negligence, strong defenses exist and are used to hinder a successful outcome. This creates space for both sides to negotiate. In fact, most personal injury cases are settled before they go to trial. But you still need to have a solid claim to thwart the defendant’s efforts and to ensure maximum compensation. Going to trial isn’t always a bad thing when the stakes are high. What’s bad is not getting the compensation you deserve, and, thus, not having the resources you need to recover better.
Keep in mind, too, that these laws can be used by either side. To be successful in a negligence claim, whether it’s settled or goes to trial, it takes more than knowing how the laws work – it requires employing the law to your advantage. Only an experienced, determined Michigan personal injury attorney has that ability.
If you’ve been injured due to someone’s negligence and you have questions, we have answers. Laws surrounding negligence can be confusing, but at Goodman Acker, our team of committed personal injury lawyers and car accident attorneys have a deep understanding of how it works and how we can work it for your benefit.
We represent clients throughout Michigan via our remote services and our brick-and-mortar offices in Detroit and Grand Rapids. Contact us online or call us directly at (248) 306-8729 to schedule a free, no-obligation consultation!
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