*1
Zeni v Anderson
1976]
ZENI v ANDERSON
10,
8).
Argued
(Calendar
Docket No.
56479.
October
No. —De-
July
cided
1976.
brought
damages
Plaintiff Eleanor K. Zeni
an action for
personal injuries
by
received when she was struck
the automo-
bile of defendants Karen and Donald Anderson. Plaintiff was
walking
oncoming
along path
with her back to
traffic
a
worn in
edge
roadway by pedestrian
the snow on the
of the
traffic
using
rather than
the snow-covered sidewalk on the other side
of the road. The trial court instructed the
on the doctrine
subsequent negligence
they
or last clear chance that even if
plaintiff
negligent
failing
sidewalk,
found the
to use the
possible
a verdict for the
if the defendant driver
ordinary
failed to use
care with the
at
means
hand to avoid the
plaintiff after the driver knew or should have known of the
plaintiff’s danger.
judgment
Verdict and
for the
Court,
Marquette
Davidson,
Circuit
Bernard H.
J. The Court of
Appeals, Holbrook,
J.,
(R.
Burns,
Smith, J.,
P.
and T. M.
J.
L.
dissenting),
(Docket
reversed and remanded for a new trial
No.
16098).
appeals.
Plaintiff
Held:
(in
penal
1. Violation of a
statute
this case the statute
requiring pedestrians
sidewalk,
to walk on the
or if there is
none,
traffic)
highway facing
by
on the left side of the
a
negligence
prima
or defendant
in a
action creates a
facie case
legally
which
be rebutted
a
sufficient excuse under the circumstances of the case. It would
be unreasonable to adhere to an automatic rule of
subject person
danger
where observance of a statute would
a
might
by disregard
general
which
be avoided
rule.
adopts
penal
2. When a court
statute as the standard of
negligence,
care in an action for
violation of that statute
prima
negligence,
establishes a
facie case of
with the determi-
party
nation to be made
the finder of fact whether the
[12]
[1-5]
[6, 11, 13,
[7-10,
75 Am Jur
57 Am Jur
57 Am Jur
14]
57 Am Jur
2d,
References
2d,
Trial 604 et
Negligence
2d, Negligence
§
2d,
for Points in Headnotes
Negligence
§§
seq.
394§
246, 258,
§§
et
388-390.
seq.
270.
concurrent and
Appeals
The
is reversed
decision of the Court
and that of
the trial court is affirmed.
ground
jury
Justice
that the
Lindemer dissented on
found
and, therefore,
guilty
subsequent negligence
defendant
negligent.
must have
was also
There
found that the
upon
no
reasonable minds could
evidence
which
conclude that
plaintiff’s
negligence
terminated so
concurrent
had
that the
subsequent
a
be
as matter of
defendant’s
could
law.
(cid:127)
applicable
The doctrine of last
chance is not
clear
to this
lawsuit,
Torts, 2d,
approach
and if the
Restatement
law,
adopted
adopted
Legislature
to be
be
should
rather than
case.
decision
this
ground
Justice
Coleman dissented on
that the instruction
jury
subsequent
to the
was insufficient because
elements
fully
as it
at
existed
the time
trial were not
explained.
specifically
instructed on whether
plaintiff’s negligence
had
ceased to
cause
injury,
they
subsequent
her
nor were
told that the doctrine of
*3
negligence
apply
negligence
parties
does
the
where
of both
proximately
plaintiff’s injuries.
is concurrent and
causes the
Any adoption of Restatement standards
be
should
viewed with
asking
care and should be done
after
for comments from
the bench and bar. The doctrine of last clear chance should not
superimposed upon
according
be
this case which was tried
to
subsequent negligence.
the
of
doctrine
(1974)
App
The of violation a statute a or defendant in a negligence prima negligence action a establishes facie case of by may showing party which be overcome a who violated adequate the of statute an excuse under the facts of the case. Negligence Statutes—Violation—Presumption—Rebuttal. 2. — adequate presumption negligence
Excuses which are to rebut a of penal which arises in a civil action a from violation of a statute include, to, hazards, but are not limited natural sudden emer- gencies, incapacity comply, knowledge to of lack of the occasion compliance, inability comply exercising for to after due dili- gence, greater danger and avoidance of to or others one’s self by and shall be determined the of each case. circumstances Negligence Statutes—Violation—Presumption—Rebuttal. 3. — exceptions reasonably to A a statute must construed be accomplish justice by statutory to been created edict have negligence allowing prima of facie case rebuttal of the penal statute if there sufficient arises violation of a from statute; the justification of it would the violation excuse or negligence rule of to an automatic be to adhere unreasonable person danger subject a to a would where of statute observance general disregard by of rule. might the which be avoided Negligence 4. of Care. —Statutes—Violation—Standard adopts penal of in as the standard care When a court a statute negligence, of that statute establishes a action for violation prima negligence; the finder fact facie case of if determines violating party has established a the accused of the statute legally excuse, appropriate of care be- the standard sufficient law. comes that established the common Negligence 5. —Statutes—Violation—Sidewalks—Standard Jury. to Care —Instructions injuries to to a action for a An instruction the along highway adequate pedestrian walking a the side of plaintiffs use to the failure to a snow-covered the effect of highway in violation of the sidewalk on other side charge relating pedestrians highways where to statute "provided” to were and whether decide whether sidewalks pedestrian “practicable” walk on the left side it was for the (MCL highway facing passes traffic which nearest 9.2355). 257.655;MSA Negligence 6. —Last Clear Chance —Elements. applied doctrine of clear chance last if, taking into all the facts and circum- action consideration (1) stances, following exist: conditions (2) dangerous, position or which become situation has knows, ought ordinary care defendant exercise (3) know, peril, plaintiffs the defendant has means *4 (4) care, by ordinary the harm the use of and the avoid reasonably fails use due care when it be defendant to could ordinary negligence likely to cause harm. foreseen Negligence Helpless 7. —Last Clear Chance — Plaintiff. subjected plaintiff negligently A to a risk of who has himself negligence may subsequent the recover harm from defendant’s thereby the to the for harm caused if is unable avoid Zeni v Anderson care, by vigilance
harm the exercise reasonable and and the competence defendant to fails utilize with reasonable care harm, opportunity his to when he avoid the knows of the plaintiffs situation and realizes or has reason to realize the “ peril. Negligence 8. —Last Clear Chance —Inattentive Plaintiff. plaintiff who, by vigilance, A the exercise reasonable could danger negligence discover the created defendant’s him, if, only if, time to avoid the to harm can recover but situation, plaintiffs defendant knows of the and realizes that is inattentive and fails to utilize with reasonable competence opportunity care and his to avoid the harm. Negligence Jury. 9. —Last Clear Chance —Instructions jury relating
The standard instruction to the doctrine of last subsequent clear negligence chance and concurrent and disapproved (SJI 14.01). given longer no
Dissenting Opinion Lindemer, J. Negligence Negli- Negligence Subsequent
10. —Concurrent — gence. ñnding A of fact that a in an defendant action for guilty subsequent negligence jury indicates that must negligent; defendant, have also found however, judgment is entitled to a as a matter of law where upon there is no evidence which reasonable minds could con- plaintiff’s negligence clude that the had terminated so that the subsequent of the defendant would be rather than concurrent. Negligence Policy. 11. —Last Clear Chance — Adoption of the doctrine last clear chance should be left Legislature Supreme rather than a decision of the Court in a case where there was no evidence that the doctrine of last apply. clear chance would
Dissenting Opinion Coleman, J. Jury
12. Trial —Instructions —Courts. judge responsibility correctly A trial has to instruct as it is at on the law the time of trial. *5 397 Opinion the of Court Jury— Negligence Negligence Subsequent —-Instructions 13. — Jury Standard Instructions. concerning the Jury doctrine of subse- The Standard Instruction wording quent negligence further in its without is deñcient (SJI explanation subsequent negligence of as to elements the 14.01). Change Negligence Law. Clear Chance —
14. —Last Adoption Supreme of of the standards the doctrine Court care be viewed with and should be of clear chance should last asking the bench and bar. for comments from done after Negligence— Negligence Subsequent 15. —Last Clear Chance — Jury. Instructions superimposed The not be doctrine of last chance should clear appeal jury upon for instructions standard according tried to the of case which was doctrine subsequent negligence. Adamini, Kendricks, Bordeau, Casselman & plaintiff. C,P. for for
McDonald & McDonald defendants. us this J. issues confront Williams, Two alleged case. first is the effect of an The by plaintiff. violation of statute The second is Jury sufficiency Michigan Standard Instruction 14.01 clear We on last chance. hold violation by plaintiff of a statute defendant creates a prima jury may facie case from which a draw an negligence. also con- inference sider whether a legally sufficient excuse has been presented to refute this inference. As the sec- question, approach ond we find that Law in the American Institute second Restatement gives of Torts a clear and decisive statement of Michigan clear case law last chance supports basically However, law the Restatement. specific trial because of facts this case new Zeni v Anderson op the Court necessary, and we therefore reverse the Appeals Court and affirm trial court.
I— Facts precipitated The accident which this action oc- snowy morning, 7, 1969, curred one March when temperature sky F, 11° was was clear and average .depth snow was 21 inches. Plaintiff 56-year-old registered Zeni, Eleanor then a nurse, walking was to her work at the Northern Michi- gan University Marquette. Health Center In- using sidewalk, stead of the snow-covered which in any required event would have her to walk across get job, the street twice to to her she traveled along pedestrian snowpath, a well-used with her oncoming back traffic. college Anderson, student,
Defendant Karen driving speed steady within the limit in a stream of traffic on the same street. Ms. Anderson testified that she had turned on the defroster in passenger scraped the car and her the windshield. An said she had
eyewitness
deposition
whose
trial, however,
was read at
testified that defend-
ant’s windshield was clouded and he doubted that
could see out. He also testified that
occupants
traveling
the car was
that he could tell
too close to the curb and
going
to be hit.
Defendant’s car struck the
on the driv-
right
er’s
side. Ms. Anderson testified she first saw
parked
right-
.
between a car
on the
hand
car,
side of the
and defendant’s
.road
that she did not hear nor feel her car strike Ms.
eyewitness reported seeing plaintiff flip
Zeni. The
over the fender and hood. He said when he went
help
over to
her his knees were on or inside the
delineating
parking space.
security
line
white
A
Ms. Zeni’s injuries were serious and included an intracerebral required subdural hematoma which neurosurgery. retrograde She has amnesia therefore, because she does not remember any- thing from began walking the time she that morn- ing until impact, sometime after there is no way to determine whether she knew defendant was behind Following her. period extended convalescence, plaintiff, suffering still permanent disability, could return to work on a part-time basis.
Testimony at trial indicated that it was common for nurses to use the roadway to reach the health center, and a security officer testified that in the wintertime it was safer to walk there than on the one sidewalk. Apparently, several days before the *7 accident, Ms. Zeni had indeed fallen on the side- walk. Although she was not fell, hurt when she the Director of University Security was hospital- ized when he fell on the walk.
Defendant, however, maintained that plaintiff’s failure to use that sidewalk constituted contribu- tory negligence because, said, she it violated 257.655; 9.2355, MCLA MSA which requires: "Where provided, sidewalks are it shall be unlawful pedestrians for upon to walk portion main traveled of the highway. Where sidewalks provided, are not pedestrians shall, practicable, when walk on the left side highway facing passes traffic which nearest.”
The trial court instructed the jury point: on this "Now, you it is for to decide whether on the evidence presented case, in this provided sidewalks were for the plaintiff, Zeni, Mrs. go parking from lot 'X’ [where Anderson Zeni v Opinion of the Court parked beginning her to her she her car before walk] statute, Then, you place of work. to this shall then as practicable for her decide whether or not it was to walk facing highway the left traffic on passes side of the which Zeni, plaintiff, you If find that Mrs. nearest. at the time of the violated this before or occur- statute rence, law, negligent as a matter then Zeni was Mrs. which, course, I, her claim under bar count would proximate negligence was a providing that her contrib- uting cause of the occurrence.”
The trial court instructed the jury, also over they even if objection, defendant’s found plaintiff negligence and that her negligent, was was a injuries, cause of her verdict for plaintiff possible was still if defendant was subse quently negligent failing for to use care ordinary with the she means at hand after knew or should danger.1 known Defendant plaintiff’s have ob Michigan Jury The court used Standard Instruction 14.01 on last provides: clear chance for this issue. That instruction (decedent) though you (plaintiff) "Even find his own placed position danger, plaintiffs himself in a that will not defeat ordinary damages if to use care with the claim defendant failed at hand after knew or should have known of means defendant (decedent’s) (plaintiff’s) danger.” plaintiffs contributory negligence The instruction effect 21.02(A),including: was based on SJI proof on "The defendant has the burden of his claim that the the negligent ways was in one or more of the claimed you instructions; that such defendant as stated these (dam- proximate contributing (injuries) was a cause of the ages) plaintiff. to the negligent just you contributorily "If find that the instruction, proof in this has the burden of on his stated claim that the defendant after the defendant which the (the (the is, negligent subsequently defendant —that ordinary failed to use care the means at hand with *8 danger knew or should have known of the negligence) plaintiff placed by contributory was his own previously conduct was and as ex- defendant’s willful wanton instructions). plained in these (damaged), plaintiff, (injured) be for "Your verdict will the if he was negligent, negligence proxi- and the defendant was and such was a (damages), (injuries) plaintiff was of his unless the himself mate cause negligent negligence (inju- proximately to his and such contributed 397 Opinion of the Court
jected instructing the court on subse chance, quent negligence, last clear claiming that, since plaintiffs negligence walking in the street prior had not to rest time come she defendant, was struck the instruction was inapplicable.* court held that ques The trial tion of whether was concurrent negligence was for the jury, gave Michigan and Standard Jury Instruction 14.01: though you "Even negli- find Zeni her Mrs. own
gence placed position danger, herself in a that will * * * damages not defeat her claim for if defendant failed to ordinary use care with the means at hand after the defendant knew or should have known of Mrs. danger.” Zeni’s also He proof,3 instructed on burden of as recom- ries) (damages). plaintiff negligent negli- If the himself was and such gence proximately (injuries) (damages), your contributed to his verdict (defendant plaintiff only subsequently will be for the if the (defendant’s negligent) explained (willful wanton), previously conduct was willful and instructions, (subsequent negligence) in these such conduct) proximately plaintiff’s (inju- and wanton caused the ries) (damages).” plaintiff’s SJI 12.03 concerns the effect of of a violation statute: you plaintiff "If find that the violated this statute at before or occurrence, plaintiff negligent time law. then as a matter of negligence You must then decide whether such was a contributing cause of the occurrence.” following says: The note on use SJI 14.01 "This instruction be should used when there is evidence of plaintiff’s precedent negligence, placing danger. position him in a If negligence the defendant, of a is concurrent with the of a applicable. peril not instruction is Also if is in part, without because there applicable on his this instruction is not precedent negligence no to excuse. This instruction given should unless there is evidence that defendant could have avoided the accident after he knew or should have known of plaintiff’s danger.” 3 "21.02(A) Negligence Burden of Proof Cases the Issues and Thereof, Legal Including Effect Contributory Negligence the Issues of (Last Chance) Subsequent Negligence Clear or Willful and Wan ton Misconduct proof following "The has the burden of on each of the propositions: *9 Zeni v Anderson the of Court 14.01, Use, by mended on as the Note SJI well as proximate cause.4 "guilty subsequent of found defendant negligence” $30,- plaintiff damages awarded 000. (a) (sustained plaintiff (injured) damage); that the was (b) negligent ways the one or that defendant was more of the by plaintiff you instructions; claimed the stated to in these as (c) proximate negligence that the the defendant was a cause of (injuries) plaintiff. (damages) to the proof “The defendant has burden of on his that the in claim the the plaintiff negligent ways by one or was more of claimed instructions; you as defendant stated to in these and that such (dam- negligence ages) proximate contributing (injuries) was a cause of the plaintiff. to the you contributorily plaintiff negligent just find “If that the was as instruction, plaintiff proof stated in this has the burden of on his (the is, subsequently negligent claim that defendant was —that ordinary the defendant failed to after the defendant care with the at use means hand danger or should have known of the knew plaintiff negligence) placed contributory which the his was own (the previously defendant’s willful conduct was and wanton as ex- instructions). plained in these plaintiff, (injured) (damaged), “Your will verdict be for if he was negligent, proxi- and the defendant was and such was a (injuries) (damages), plaintiff mate negligent cause his unless the himself was negligence proximately (inju- and such contributed to his ries) (damages). plaintiff negligent negli- If the himself was and such gence proximately will be negligent) explained (willful (injuries) (damages), your contributed to his verdict (defendant plaintiff only subsequently if was (defendant’s wanton), previously conduct was willful and as instructions, (subsequent negligence) in these and such conduct) proximately plaintiff’s (inju- and wanton caused ries) (damages). defendant, "Your verdict will if be for was not (injured) (damaged); negligent, (damages); negligent; if the was defendant not or if (injuries) such was not a cause of the negligent negli- or if the himself was and such
gence
proximate contributing
(injuries) (damages),
awas
cause
his
(defendant
(defendant’s
negligent)
subsequently
and the
was
wanton)
previously explained
conduct was not willful and
these
instructions.”
Definition
"15.01
of Proximate Cause Instruction
words,
first,
'proximate
use the
I
"When I
mean
that there
cause’
been a
must have
connection between that conduct of the defendant
negligent
injury complained
which
the
claims
and the
second,
plaintiff, and
that the
which is
to have
occurrence
claimed
produced
injury
probable
natural
result
such
the defendant.”
conduct of
397 Opinion op the Court
thorough opinion,
Appeals, in a
The Court of
App 283;
causes that "SJI 14.01 is in its the Court found wording explanation”, 56 deficient without further App 302, as it does not advise the inasmuch oper- plaintiffs must cease ensuing injury. ate as a cause of the Appeals reversed and re- The Court of therefore manded a new trial. for granted appeal January 29, 1975.
We
leave to
II — Effect
of
Violation
Statute
Michigan
analysis
An
of the
cases indicates that
Michigan
rule as to the effect of violation
real
penal
in a
action6 is that
of a
statute
dissenting
panel
found
member of the
would have
entry
negligent
for
as a matter of law and would have remanded
veredicto,
judgment
holding
nothing in the
non obstante
there was
suggest
impracticable
record to
walk on the
whether
it would have been
for
sidewalk,
and that reasonable minds could not differ
plaintiff’s negligence
App
303-
was concurrent. 56 Mich
304.
though
Such a statute is relevant
to a civil case "even
the statute
not,
normally
case,
respecting
provision
civil
does
as is
contain a
(On
611, 613;
liability.”
Finley
Rehearing),
App
Thaut v
(1973).
negligence of
NW2d 820
This is true whether the issue is the
Anderson
v
Zeni
Court
of the
prima
facie case
only
such violation creates
from
of negli-
an inference
jury may
which
draw
It
gence.
passages
is true that a number
cases
speak of
almost
in terms of
negligence per se
strict
liability,
application
but closer examination
Michigan
rule reveals
does not sub-
dogma.
scribe to
a harsh
such
Presumption
A. Violation of Statute as Rebuttable
states,
In
growing
number of
the rule concern
ing
proper
penal
role of a
statute
a civil
action
damages
is that violation of the statute
which
apply
particular
has been found to
to a
set
of facts
a prima
establishes
facie case
d7
negligence, a
which
presumption
may be rebutte
aby
showing
part
on the
of the party violating the
adequate
statute of an
excuse8 under the facts and
defendant,
contributory negligence
plaintiff. Haynes Seiler,
*11
(1969).
102;
12.01,
App 98,
See,
circumstances of case. action, a criminal in applicable necessarily since, civil in of legislatively-mandated the absence statute itself of the criminal penalties, acceptance purely civil action is a care in a standard Illustrations, Comment discretionary. See 2d, 288A, Torts, pp 33-37. Restatement § followed this rule. Michigan have in effect cases 65-year cases concern- period, For a example, over negligence action violation ing the effect in a keep right to the vehicles to requiring the statute consistently a adopted road have almost side though even presumption approach, rebuttable language not written in terms of a of the statute is presumption.9 Nelson,
Thus, v 41; Mich 66 NW Tyler in (1896), charge approved we required "law of the road” driv- though even ing right, to the circumstances, apparently "if, under all left, him did turn to and he what a
safer
ordinary prudence
have
under
man
would
done
circumstances,
right
disregard
then he had
similar
law turning
particular,
in that
and his
the road
negligence.” (Emphasis
to the left would not
itself be
added.)
Ainsworth,
v
in Buxton
Again,
although
By time we 216 decided 680; 748 NW was clear was, the law keep right "While a driver who does not of the fault, is presumptively center at the circumstances attending meeting may such be such overcome presumption, or the evidence establish the fact essentially that such act of did not contrib-. added.)10 the injury.” (Emphasis ute to approach This still under the successor statute, 257.634; 9.2334, MCLA MSA with the question being whether an excuse would acceptable, what acceptable but excuse would be.* find approach
We
a similar
to the assured clear
also,
Michigan
Co,
See
Ross v
Mutual Auto Insurance
224 Mich
(1923)
263, 269-270;
(burden
proof
party
wrong
88NW
on
circumstances);
justifying
side of the road to show
Sanderson
Barkman,
(1933)("If
necessary
249 NW
it was
upon
wrong
highway,
for defendants to drive
side of the
statute,
provisions
upon
violation
it was incumbent
necessity.”).
defendants
show the circumstances of such
wrong
mere fact
an automobile is
"[T]he
on the
side of
highway at the
time
collision does not of
make the driver
itself
Booth,
guilty
thereof
as a matter of law.” Martiniano v
(1960)
680, 687;
(suggesting
132
397 Mich
op
Opinion
the Court
v
Patzer
Bowerman-Halifax
distance statute.12 In
Home,
Funeral
350,
352; 370 Mich
NW2d 843
(1963), we recognized,
applica
"Its [the statute’s]
tion to
circumstances,
variant
evidentiary
once
visibly to the rigid [interpretation]
[citing Lett v
Hecht,
Summerfield &
699, 703;
239 Mich
214 NW
939 (1927)],
inexorably
has
force of
developing
traffic conditions
modified in recent years
been
one of 'reasonable
construction’ ”. In that case we
found that extraordinary
blizzard
conditions
our
Upper Peninsula
made
safest
for drivers
follow the yellow flashing light of the snow plow.
"To stop for want
driving
vision
other
reason
* * *
is to invite a collision from the rear.
isn’t
[I]t
possible at all
times
to obey the letter of the
enactment
requiring
an assured
clear distance
ahead, and still
obey
variable and jury-deter
minable requirement
of due care.”
Thus, while it has been said that violation of
this
statute
se,
Mc
per
constitutes
Kinney Anderson,
414,
419;
129 NW2d
(1964),13
such presumption may be overcome.
The range of acceptable excuses is apparently
not
limited to
Patzer-type
hazards,
natural
or Mc-
got
wrong
the driver
on the
side of the road and whether
it was
emergency
Hackley
caused
situation.”
Union National Bank v
Co,
64,
App
73;
(1966).
Warren Radio
5 Mich
The Michigan presumption rebuttable approach is not restricted to these statutes. The Standard Jury covering Instruction the effect of the viola- tion of any penal statute on a negligence case asks to consider possible excuses if such evi- dence presented. Although the text of the in- struction is couched in terms of the emergency exception,15 the provides Note on Use that instruction "should be modified for other categor- ies of excused violations.” possible For such ex- cuses, the Comment refers to the five categories of excuses suggested Restatement, by fn supra. The Restatement itself suggested has this list is not all-inclusive.
We think the test of the applicable law was well stated by our Brother Justice Fitzgerald when he was a judge on the Court of Appeals. In Lucas v Carson, 38 App 552; Mich NW2d 819 he analyzed where, a case in spite of defendant’s precautions, her vehicle "inexplicably slid into the rear of plaintiffs stopped car” where plaintiff was waiting at signal. a traffic App Mich 554. Plain- emergency A sudden making not of defendant’s own was found to applicable in Seamon. 15"However, you if find that defendant was confronted with a emergency and, sudden making not of you his own if find that he ordinary used care and was still unable to avoid the violation because emergency, of such then his violation is excused. you "If find that defendant violated this statute and that excused, you violation was not gence negli- then must decide whether such 12.01(A), was a cause of the occurrence.” SJI Ex- 12.03(A), cused Violation of Statute Defendant. See SJI Excused Violation of Statute Plaintiff. 397 the Court of tiff alleged 257.627; that defendant violated MCLA 9.2327, statute, MSA the assured clear distance as well as 257.643; MCLA MSA 9.234316 and MCLA 257.402; Although MSA language 9.2102.17 the latter two raises possibility statutes excuse, precedents we think our review in indicates Lucas was correct not distinguishing among acceptable statutes standards excuse, restricting acceptable not gamut possibilities. of excuse
First,
analyzing
the presumption
whether
attributed
rear-end collision had
them,
been rebutted in the
before
case
the Court
Appeals
acknowledged
the usual grounds
rebuttal,
sudden emergency,
appear
did not
this case. In effect
defendant’s
accepting
conten-
tion that
the doctrine of sudden emergency was
the sole
rebutting
presumption
basis for
negligence,
the Court held:
general
"The
appears
rule
to be that evidence re-
*15
quired
presumption
rebut
to
this
as a matter
law
positive,
should be
unequivocal, strong, and credible. In
bar,
the case at
defendant driver
contended
she
was at
driving
prudent
all times
in a
and
reasonable
* * *
manner.
was sufficient
at
evidence
least to
[T]here
generate
jury question regarding rebutting
of the
(citations
presumption.”
552,
App
38 Mich
omitted;
557
Court).
emphasis by the
As
alleged
violations,
to the other
statutory
Fitzgerald
Justice
observed:
16"The driver of a motor vehicle shall not follow another vehicle
* * * ”,
closely
prudent
more
than is reasonable and
17
action,
any
any
by
"In
in
court
this state when it is shown
evidence,
competent
traveling
direction,
that a vehicle
in a certain
proceeding
overtook
and struck
rear end
another
vehicle
in the
direction,
lawfully standing upon any highway
same
state,
within this
operator
the driver or
of such first mentioned vehicle shall be
prima
guilty
negligence.”
facie
deemed
135
Zeni v Anderson
1976]
Court
" 'Whereas,
time,
application at one
the statute
(assured
distance)
strictly
clear
ap-
construed and
plied as
evidenced
the rule
the case of Lewis v
Yund,
"Since there at least some evidence that defend- operating ant driver was and her vehicle in a reasonable prudent accident, prior question manner to the of whether or not defendant violated one or both of these properly statutes was a factual one for the added). App (emphasis resolve.” 38 Mich approach one,
This is the we today. follow For recognizes Legislature spoken has in a area, particular that, and legislative process "The opportunities includes ar- judgments
rive at informed value tunities of tive superior oppor- to the Furthermore,
judges jurors. legisla- judgment pronounced in advance and tends to public.” educate the L Colum Rev 47. Particularly the area of health safety regu- *16 lations, we find ourselves "to further attempting the ultimate policy protection of individu- als which find they underlying the statute.” Pros- 117
136 the Court too, it felt that "the Then, is ser, supra, 191.18 p usually comply” tries to man reasonably prudent 21, 33.19 L Rev 49 Colum the criminal law. with is that it is approach this Another attraction justification, excuse sufficient "If there is fair. and the of a statute no violation ordinarily there is Satterlee inapplicable.” is standard statutory Diego County, Dist of San School Orange Glenn (dissent (1947) 279, 581, 594; 177 P2d 2d Cal to adhere to unreasonable in It would be ing part). "where observance automatic rule of might be danger which to subject person a would rule”. Tedla v general disregard avoided 987, 131-132; Ell 19 NE2d man, 280 NY (1939). fault is Liability without logical. approach is of a clear in the absence and truly negligence, liability, extend to so
legislative mandate
their own.
to do so on
hesitant
should be
courts
statutes,
all,
are,
criminal
after
Because these
go
plucking
it
in how far
is limited
court
it
inserting
milieu and
criminal
from its
statute
pre-
rule of rebuttable
arena. The
into the civil
to this
response
part
arisen in
sumption has
the reluctance
concern,
part
because
effect, discard or
and in
to the other extreme
go
legislative standard.20
disregard the
liability
purpose”.
standard of care
ble because
626.
forth the California
free
ous
considering
therefore a more accurate
Still another
For
However,
as to call for
approve
example,
"[i]n
Prosser, p
a violation
Prosser
might
"conduct
greater
rationale is that
ordinary
Justice
criminal
rule of rebuttable
191.
be similar
calls such an
of a statute as
than that
that the
Traynor,
case
punishment”.
test. 57
to the
* * * pure
Legislature
the criminal statute establishes
required by
dissenting
implied
Am Jur
presumption,
approach
Satterlee v
evidence of
intent
fiction concocted for
2d,
has declared so
to the
the common law”
in which
Negligence,
found
provide
opinion
Orange
negligence,
it undesira-
the
§
jury by
danger-
for tort
setting
Glenn
"a
p
*17
137
v
Zeni Anderson
op
Opinion
the Court
Violation of
as
Per Se
Negligence
B.
Statute
While
Michigan
speak
some
cases seem to
negligence per
se as a kind
strict
liability,
Staniak,
Holbert v
283, 290;
359 Mich
NW2d
102
186
an examination
that
indicates
there are
attempt
a number of
that
to
conditions
create a
more reasonable
than would result
approach
from
automatic
se
application
per
a
rule.
penal
first such
condition is
stan
applied
dard does not have to be
in the civil
explicit
legislative
language
action. Absent
creat
civil
ing
liability for violation of a criminal
stat
ute, a court
is free to exercise its discretion and
standard,21
adopt
legislative
either
or retain
person
the common law reasonable
standard
Co,
care. LaCroix v Grand Trunk W R
581,
(1947)
District,
596;
279,
(dissenting
School
in
29 Cal 2d
177 P2d
287
part).
21Thus,
Torts, 2d, 286,
26,
d, p
2 Restatement
Comment
§
observes:
legislation
question
regulation
initial
is whether the
to
"[T]he
is
given any
legislation
effect in a
suit.
civil
Since
has not so
provided,
compulsion
accept
defining
the court is
no
it
under
to
as
any
purposes
conduct
standard of
for
of a tort action.
legislation,
constitutional,
although
entirely
"Where criminal
is
where,
inappropriate
example,
unreasonable or
automobile
for
there is an
—as
hour,
speed
limit of six miles an
enacted in 1908 and
repealed
choice,
prosecution,
never
court has no
a criminal
—the
apply
to
but
the law so laid down. But since it is under no such
compulsion
suit, may
provision
inapplica-
in a civil
it
still
treat
purposes
defining negligence
so,
for
doing
ble
it
intention
criminal
in such a
In
suit.
may rely
justification
legislature
on the
that the
has
no
indicated
applied,
nothing
shall
it
be so
since
more than
* * *
penalty
provided.
has
been
hand,
free, making
judicial
"On the
other
the court is
its own
rules,
apply
adopt
to
action the
standard
provided by
regulation.
conduct
may
such a criminal enactment or
This
though
provision
entirely
do even
is for
reason
some
ineffec-
purposes,
signal
up
for its
tive
initial
as where a traffic
set
under
properly published
an ordinance which never has been
and so for the
purposes
prosecution
entirely
of a criminal
void. The decision to
judicial one,
adopt
purely
the standard is
the court make.
adopt
legislative standard,
acting
When the court does
it is
general purpose
legislation,
further
which it
in the
ñnds
and not
”
any way required
(Emphasis supplied.)
it is in
to do
because
so.
117
138
op
the Court
(1967) (concurring
417,
438-439; 152 NW2d
Gottschalk,
552;
v
159 Tex
e.g.,
See
Rudes
opinion).
(1959); Clinkscales v Car-
201,
324 SW2d
204-205
Ray-
(1943);
ver,
777,
72;
22 Cal
136 P2d
2d
Corp,
484 F2d
mond v
Textile
Riegel
Hagan,
(CA1,
Md
Whoolery
1973);
supra,
Prosser,
p 200; Murchi-
(1967);
A2d
Statutory
for a
son, Negligence
se and Excuse
per
*18
(1973).
Texas,
L J 552
By
5 Mary’s
Violation
St
purpose22 a court
statutory
the
interpretation
its
from the conse-
in effect excuse
individual
may
the
example,
a
For
violating
statute.
quences
to
purpose was not
may find the statute’s
court
or,
if it
injured,
the
even
protect
person allegedly
was,
the
that
was not what
the harm suffered
do.
the statute to
Legislature designed
this
crossed and the court
Once
threshold
is
applicable
to the
the statute
is
determines
v Consol-
it,
e.g., Hardaway
in the
facts
case before
190, 196-197; 114
Co, 366
Paper
idated
Mich
22
"
statutory purpose
usually
by applying the
doctrine:
This is
done
adopt
may
court
as the standard of conduct of a reasonable
'The
requirements
legislative
enactment
an administrative
man the
exclusively
part
regulation
purpose
whose
is found to
or in
be
" '(a)
persons
protect
which includes the one whose
to
a class
invaded,
interest is
and
" '(b)
invaded,
protect
particular
is
to
interest which
" '(c)
against
protect
kind of
has
to
that interest
harm which
resulted, and
" '(d)
particular
protect
against
interest
hazard from
to
”
Torts, 2d, 286, quoted in
2
the harm results.’
Restatement
§
which
417, 439,
Mich
fn 3.
379
12.01,
Thus,
Statute
the Note on Use for SJI
Violation of
Defendant, provides:
given only
if:
"This instruction should
involved;
protect against
injury
to
"1. the statute is intended
protected
to be
"2. the
is within
class intended
statute; and
support
finding that
was a
"3. The evidence will
violation
occurrence.”
cause of the
plaintiff, except that "the
is intended
This remains true for
statute
Use,
against
protect
of the
Note
12.03.
the result
violation”.
SJI
139
v Anderson
Zeni
the Court
(1962),23liability
does not attach
still
236
NW2d
that the viola-
determines
unless the finder of fact
proximate cause of the
is
tion
statute
injury.
Merson, 285 Mich
Holmes v
"The
with the
solution
cause
reason, may
applied
ineffective for some
still be
in civil actions.
targets
legislative
This creates a situation where the actual
of the
reached,
others,
violators,
scheme cannot be
but
the civil
whom Legislature may
all,
not have had in mind at
are the
ones
affected
the statute.
(1943)
e.g.,
(civil
Carver,
72;
See
Clinkscales v
Cal 2d
Similar judicial
liberties
taken with the
terms,
meaning
statutory
in order to avoid the
Smith,
Eg.,
306, 311-312;
Ertzbischoff v
C Violation of
as Evidence of
Statute
presumption approach
as
Just
the rebuttable
statutory
appar-
context
violations
a
ently
part,
arose,
least in
from
at
dissatisfaction
application
of
with
result
a mechanical
of
per
parallel development
rule,
se
our state
respect
ordinances,
with
of
to infractions
and of
regulations,
administrative
has been that viola-
only
negli-
tions
gence.
these amount
evidence of
Co,
212,
Rotter Detroit United R
205
v
Mich
(1919);
231;
Roche,
We have that while some of our *22 Michigan present negligence per cases seem se unqualified rule, the fact of the matter qualifications there are a number which application really per make approach rule not of this a se only statutory
at all.30 Not must purpose requirement proxi- doctrine and the alleged wrongdoer satisfied, mate cause be but the opportunity has an to come forward with evidence rebutting presumption negligence.
An accurate statement of our law is that when a adopts penal court a statute as the standard of negligence, care in an action for violation of that prima negli- statute establishes a facie case gence, by with the determination to be made party finder fact whether the accused of violat- ing legally the statute has established a sufficient excuse. If the finder of fact determines such an appropriate exists, excuse standard of care by then becomes that established the common law. include, Such excuses shall ited 2d, 288A, but shall not lim- be suggested by to, Torts, those the Restatement § and shall be determined the circum- stances of each case. bar, moreover,
In the case at the statute itself provides guideline jury, a for the for a violation per may perhaps applicable A strict se rule in cases where the limited in certain cases, certainly Legislature set forth itself has liability, rules of strict today. but we are not a confronted with such statute op the Court will not occur impracticable when it is to use the sidewalk or to walk on the left side of a highway. This is fact,31 for the ordinarily question finder of Gabris, Bird v App 218 NW2d the statute itself provides thus legislative standard of care which may be accepted court, legislatively but a mandated excuse as well.
In the instant charged case the court jury: "Now, it you is for to decide whether on the evidence presented plaintiff, case, in this provided sidewalks were for the Zeni, Mrs. go parking from lot 'X’ to her place Then, statute, of work. you as to this shall then decide whether on the left side practicable or not it was for her to walk highway facing of the you traffic which passes plaintiff, Zeni, nearest. If find that the Mrs. violated this statute before or at the time of the occur- rence, then negligent law, Mrs. Zeni was as a matter of which, providing course, would claim I, bar her under count her was a contrib- uting cause of the occurrence.” Thus, we find the jury was adequately instructed as to the effect of the violation of particular this *23 statute on plaintiff’s case.
Ill — Last Clear Chance The jury the case at bar apparently found the plaintiff32 contributorily negligent, but still enough, however, "It is not operation, to call this statute into merely spot that a sidewalk question. be constructed at the It must may partially destroyed by neglect elements, be usable. It it pedestrian or the water, sand, be covered or snow. In such event following probable who might insists on its course well be safety. usability heedless of his own ordinarily The of the walk is * *** question Leslie, 305, 309; of fact.” Martin v (1956). NW2d 71 jury guilty found subsequent negligence” "defendant thereby implying negligent. finding plaintiff contributorily that had been Zeni v Anderson Opinion of the Court damages finding
awarded to her because of a defendant had the last clear chance to avoid the Appeals accident. found, The Court of however, judge 14.01, that SJI used the trial to instruct jury fatally chance, on last clear deficient require inasmuch as it did not to find that had come to rest before applied. Although the doctrine could be the SJI provides Note on Use the instruction could given plaintiff’s negligence not be if is concurrent defendant, with that of the SJI itself does not explain jury. finding this facet to the This of the Appeals highlights Court of one of the cloudiest areas opportunity law, of our but it affords us an demystify it. This last clear chance case and the learned and arguments provoke involved and briefs of counsel Mann, us to revisit Davies M & W (Ex Eng Rep Eng 1842), 588; 19 Rule Cas 190 originally where the last clear chance doctrine was propounded. recalled, As will be there negligently jackass highway tethered his on the subsequent negligence driving and defendant’s carriage his at a smart rate into the animal killed poor Despite plaintiff’s negli- the gence, beast. antecedent responsible
defendant was held for his own subsequent negligence, recovered. In opinion this we examine the state of the law of Michigan gloss last clear chance in and the added original approach to the doctrine. We find that the of the American Law Institute in the Second Re- gives statement of Torts a clear and decisive state- brushing away some, law, ment of this barnacles with which time has encrusted the doc- Michigan trine, and we find that case law is basi- cally, supportive of the Restatement. *24 397 Mich Opinion op the Court
IV — State of Law of Last Clear Chance Michigan Papajesk Co, Chesapeake & O R Mich App 550, 552; NW2d feelingly de scribed the state of the law of last clear chance as follows: appeal
"This brings to the fore one of the most misunderstood negligence. doctrines in the law of There apparent confusion in every regard- almost cited case ing the gross doctrine negligence.”
Papajesk then went on
say:
"The LaCroix Case
v Grand
Co,
[LaCroix
Trunk W R
417;
App 556; 46, 49. 166 NW2d
Papajesk goes, fairly accurate as far as it is but problems there are with other connected last clear chance created marches and which have counter- marches caused some of the that have confusion in this branch of the law. hand,
On the one some of the cases have limited plaintiffs requiring ability origi- to recover negligence proximate nal cease as a to cause of the hand, accident. On the other some courts have plaintiff negligence found for even or her when his by determining contributory has negligence ceased, not applicable because defendant willful, wanton or reckless. Co, In LaCroix v Grand Trunk 379 Mich W R (1967), 417, 424; 152 it was NW2d said: " negligence plaintiff 'If the concurrent with negligence defendant, aof the rule as to the ante- * * * cedent negligence plaintiff apply. does not gross, doctrine subsequent negligence or discovered may a not be to invoked excuse concurrent ” (Plaintiff facts.) plaintiff.’ was denied on the relief City Detroit,
Likewise Davidson v
307 Mich
(1943)
420, 430-431;
A somewhat
similar
limitation
found in
"railway
several of the old
cases” which
require that
if
has discovered the peril,
possible
must do
everything
extricate
himself or
dangerous
herself
from the
position.
Thus,
Co,
Laethem v
B I R
Wayne
Fort
&
297, 301;
whether
under the
should
have
way
been out of the
when the car reached that
point, or whether
wholly by
the accident occurred
rea-
son of the
of the driver of the car.”
See Labarge
Co,
v Pere
R
Marquette
134 Mich
(1903). ("Thus
146;
However,
plaintiff
where
did not detect
the dan
ger,
requirement
extrication
does
appear,
not
even in
Thus,
the older cases.
in Montgomery
v
Co,
Lansing C E R
46;
(1894),
Mich
his stalled The court was railroad tracks. clear in rejecting any ap "should have known” proach said, when it "Under these circumstances [plaintiff] guilty thatjhe can contributory negligence, be said law,
as a matter of be during he cause failed to look down the tracks trying minute he was at work to remove the truck? We think not.”33 coin,
The other side of the
where the court
presence
in the
found
concurrent
negligence by finding
contributory negligence
applicable
place,
in the first
is illustrated
Cursan,
Gibbard
pled contributory *27 plaintiff pled gross negligence.34 and "gross negligence” Gibbard states the rule of as follows: 33Compare Michigan Co, to Krouse v Southern R recovery permitted plaintiffs
NW 768
decedent waited too
the railroad
where
was not
because
long
try
to
to leave her car which was stalled on
tracks,
though
even
she was
warned
train was
husband,
coming,
though
car,
passenger
and even
her
the other
in the
had removed himself.
“If one if his wilfully injures or conduct in doing the is so wanton or reckless injury that it thing, guilty amounts to he is more the same than negligence. by wilfulness, The act is characterized inadvertence, rather is theory reckless by negligence— than it transcends recovery sought different in Where is kind. on the wilful, that injury was caused wanton or defendant, distinguished misconduct of a as negligence, from the permitting there is no more reason for contributory negligence defense of than in a case of True, assault battery. and such misconduct this State usually negligence, and elsewhere has been called being word qualified by gross, adjectives such wan- ton, reckless, wilful, but this incorrect and has a tendency 311, 320-321; to mislead.” 225 Mich 196 NW 398.
Gibbard then goes on to define “wilfully in- flicted” as follows: note, text, “According RCL, 69 LRA p to
145, the necessary elements injury to characterize the wilfully case at bar as inflicted are: " '(1) Knowledge of a requiring situation the exercise of ordinary diligence injury care and to avert to an- (2) other; ability resulting avoid to harm ordi- nary hand; diligence care and in the use of the means at (3) to diligence omission use such care avert danger, the threatened ordinary when apparent mind it prove likely must be the result ” 311, 322; another.’ disastrous to 398. NW Gibbard
While said it distinguished “wilful, wan- ton or reckless misconduct” negligence, from accepted a definition of "wilful” couched in terms of ordinary negligence, except the recognition failure to exercise care would have ordinary Furthermore, dire consequences. it accepted the judge’s calling trial such gross negli- misconduct *28 Zeni Anderson of Court gence. Finally this Court affirmed the trial court approved plaintiff. verdict for
Gibbard, although things, illuminates some does not do of for the area last clear chance what the drafters i.e., done, of the Restatement have clarify provide the concept and workable guide- Further, lines for the of finder fact. the Restate- Torts, 2d, ment 479 and some eliminates of §§ the inconsistency illogic which have become operation attached of this through doctrine years.
V — The Restatement Position A. The Restatement Principles Torts, 2d,
The drafters the Restatement have attempted a precise statement of the doctrine of last clear chance. testing Instead of to see whether is by contributory barred negligence, their approach is more appropriately whether can qualify under the doctrine last clear chance. subtle, The is distinction but it clears way a more meaningful resolution problem.35 Prosser, Reporter Restatement, Dean in his role as to the Second approach, criticizing set forth proximate particular the rationale for this position. cause * * * represent exception "The rules the 'last clear chance’ general plaintiffs contributory negligence rule that the bars his recovery. origin exception Mann, had its in Davies v 10 &M W (Ex, 1842), Eng Rep where the left his ass highway, in the fettered and the ran defendant into it. explanations given commonly departure "Two are for this from the general contributory negligence recovery. rule bars One negligence higher degree the later of the defendant involves fault. This be true in cases where the defendant has discovered danger approaches and his conduct or intentional reckless disre- gard it; explain many negligence but it fails to cases which his merely all, consists of a failure to discover the situation at or in slowness, clumsiness, inadvertence, dealing judgment or an error of explanation plaintiffs it. with The other is that the him, 'proximate’ legal cause of the harm to because the later superseding of the defendant is a cause which relieves the *29 op the Court to the Further, apply will be able fact the triers of ordinary and care rule regular, person reasonable speculate having to about without etc., groping around the ave- gross negligence nues of proximate cause. two the Re- following
We the sections adopt stating the law last clear properly statement as Michigan: chance in Helpless Plaintiff 479. Last Clear Chance:
"§ plaintiff negligently subjected himself to "A who has subsequent negli- a risk of harm from the defendant’s if, thereby immedi- gence may for harm caused recover harm, ately preceding the "(a) it the plaintiff is to avoid exercise the unable care, vigilance and of reasonable and "(b) failing negligent utilize defendant in to the is existing competence then care and his with reasonable harm, opportunity avoid when he to the
"(i) plaintiff’s the and realizes or knows of situation in it or peril has to realize the involved reason "(ii) thus rea- the situation and have would discover the peril, to the if he were to exercise son realize plaintiff the to vigilance duty it is his to which then Torts, 2d, 479, p 530. exercise.” Restatement § Plaintiff 480. Last Clear Chance: Inattentive "§ who, vigi- "A of reasonable by the exercise lance, danger defend- could discover the created the him, negligence in to avoid harm to can ant’s recover time the if, if, defendant but the "(a) situation, plaintiff’s the knows of quite responsibility it. This is of line with modern for out injury person, legal a third as for ideas example to cause. Where is to car, passenger in that the has the the actor’s fact actor * * * liability. last clear chance does The causal relation can relieve other driver scarcely injury is to be otherwise where the other himself. driver appear reality of a "In the rules of the last clear chance to arise out contributory negligence, defense of which has made dislike reject they regard where the defendant’s courts negligence situations can injury.” producing final as the and decisive factor in Torts, 2d, Comment, 479, pp 530-531. § Restatement Zeni Anderson Opinion op the Court * * * 36 "(b) realizes inattentive peril his unlikely and therefore discover time harm,37 avoid "(c) failing negligent thereafter utilize with competence existing op- his then reasonable care and portunity Torts, 2d, harm.” Restatement to avoid the 480, p 535. §
B. Acceptance of the Restatement Position
Section 479 has almost universally been ac- cepted. Reporter’s
equal adopted number of courts has the rule of the conscious last clear chance or peril discovered (b)(i) (b) (ii). and unconscious last clear chance in 479, Appendix, p 333. cited,
Although Michigan no is case that is because we have not accepted before expressly clear, however, position. Restatement It is that our accept cases both conscious and unconscious last e.g., LaCroix v Grand Trunk W R clear chance. See Co, (1967) 417, 437; 379 Mich 152 656 NW2d (defendant "in the exercise due care should situation”). Thus, have discovered plaintiffs our decisions have reached results consistent with this position. Restatement notes,
As to
the Reporter
rule
"The
stated
§
in this Section is generally accepted.” Appendix,
480, p 348.38When we look
to
Michigan
at
cases
§
36We do not now
consider
so-called "humanitarian
doctrine”
("or
above)
realize”,
has reason to
which we omitted
which allows
recovery
where there
both an inattentive
and an
defendant
inatten-
Restatement, Second,
plaintiff.
Appendix,
p
tive
348.
§
long
37 As
a
as circumstances
indicate
that
reasonable
chance
herself,
will not extricate him
defendant
entitled
assumption
danger,
act on the
will awaken
but
Restatement,
See,
Second, Comment,
480, p
must avoid the accident.
§
536.
exception
The so-called "humanitarian
doctrine” is an
to this
general acceptance.
397 Mich
op
the Court
rule is ac-
Restatement
this
determine whether
cepted
application,
name,
find
if not
we
acceptance.
some
evidence of
Co,
Detroit,
& C R
In
J
Deadman v
(1923),
228,
plaintiff
court found that
231;
The §in Restatement 480 is limited enough, permitting plaintiff to receive the benefit only a last clear chance instruction if defendant knowledge had actual of the situation and realized danger, knowledge with to be construed from concept apparently all circumstances. foreign anomaly courts, our and avoids the recovery preventing when didn’t know peril, permitting recovery of plaintiff but of when (assuming, course,
did know defendant’s equally knowing equally negli- conduct was situations). gent duty both Since defendant’s plaintiff’s varies with the classification accorded (whether plaintiff .status, help- this classification inattentive) applied less or should be at the time charged knowledge plain- defendant is first with peril. tiff’s Applying
C.
the Restatement
applying
In
the Restatement
to the facts of this
case,
hold, first,
we
that the
threshold to cross
plaintiff may possibly
contributorily
is that
negligent.
longer necessary
It is no
to consider the
"metaphysical vagaries
accompany categor-
which
antecedent,
ies of
and
concurrent,
termed
subsequent
intervening”. Armstrong
v Le-
thing
wrong
through
perhaps
who did the
reflexes to recover
girl’s negligence,
either
inattention
bad
anyway.
example,
Gibbard, supra,
For
where the
any,
moving
just
if
consisted in her
to the left
before
struck,
being
the court noted:
did,
"[Ajssuming
fright-
that she
there was evidence that she was
ened,
peril.
and in sudden
To
one
such situation the law makes
fright
judgment
allowance for the
and lack of coolness of
incident
Perhaps
stepped
right,
girls did,
thereto.
if she had
to the
as the other
escaped,
peril,
she would have
but because of the
sudden
will not
held, imperatively,
(Empha-
now be
that she should have done that.”
added.)
Contra,
317-318;
sis
VI — Conclusion today adopt the two Restatement sections We (with exception of that which has been termed principle”41 we leave the "humanitarian which case) open appropriate in an for consideration applying appropriate test for last clear chance. brings Michigan into the mainstream This permits legal thinking subject on the sound person, normal, ordi- on the reasonable decision 38, supra. 41 See 36 and fns Anderson Zeni v *33 Opinion the Court of Further,
nary negligence. care of basis makes original the of sight purpose sure courts retain the doctrine, mitigating of the the harshness of of contributory negligence. It also makes it easier for the jury.
The trial court must determine whether categories fall could into one to may which clear be appropriately last chance applied, jury then should instruct the accord- and ingly. to will be asked determine if jury categories,
falls within one of the two Restatement helpless plaintiff, of or of inattentive and then, to if decide defendant’s conduct meets the appropriate give plaintiff standard would which the benefit of the last clear chance doctrine. This requirement applicable shall be to all future cases in which the last question of clear chance is raised, 14.01 longer given. and SJI no be may
However, giving whether the of the SJI amounted error in instant is to the case another question. jury given While the not specifically was the then prevailing language concerning concur- rent and subsequent negligence, the jury fact was to find plaintiff only instructed if her negligence proximately did not contribute her seen, we injury.42 As have the of concept concur- jury point Part of the instructions to the were: Zeni, plaintiff, injured "Your will be verdict for the Mrs. if was she damaged negligent, negli- defendant was such Karen gence proximate plaintiffs injuries, was a cause of the unless the Zeni, plaintiff, negligent proxi- negligence Mrs. herself was and such mately injuries. negli- contributed to her If the herself gent your negligence proximately injuries, and such contributed to her plaintiff only be for verdict will if the defendant explained subsequently negligent previously as instructions these - negligence plaintiff’s subsequent proximately and such caused injuries. Zeni, plaintiff, not will "Your verdict be for the defendants if the Mrs. injured; negligent; or if was not negligent, the defendant Karen was or if negligence injuries; such was not cause of 397 Lindemer, Dissenting J. negli- subsequent
rent as related way gence law as another our case arose in proxi- plaintiffs saying injuries if last clear mate cause his or her own precisely apply. what chance was That jury case. was told in instant Appeals’ the Court of can understand
We well panoply observing instructions discomfort at required gyrations in this case. The and various remedy however, not, to reverse the work striving mightily to make sense oft- trial court guided conflicting precedent, effect, when, he Appeals him to. Court wished In the future *34 judge jury cases, the task of both and will simpler be, trust, rational. The Court we and more Appeals of and the trial court af- is reversed plaintiff. firmed. Costs to J., C. and Levin Kavanagh, Fitzgerald, JJ., concurred with J. Williams, part J., no in of took the decision this
Ryan, case. (dissenting). J. The trial court in- Lindemer, subsequent using jury negligence
structed the jury objection standard of defendants. The instruction 14.01 over the
jury returned verdict as follows: subsequent jury guilty find "We the defendant
negligence.
rule in favor
in the
We
$30,000.00.”
amount of
must have found
Mrs. Zeni
therefore
negligent
negligence
if the
herself was
and such
contributing
injuries,
cause of her
and the defendant
subsequently negligent
explained
previously
was not
Karen
these instructions.”
Zeni
v Anderson
Dissenting Opinion
J.
Coleman,
negligent.
absolutely
herself
There is
no evi-
upon
dence
this case
which reasonable minds
could conclude that
of Mrs. Zeni
had terminated so that
of the de-
subsequent.
light
fendants could be
In
fact,
of this
present
doctrine
clear
last
chance is
inappropriate
this lawsuit.
This case is
vehicle
adoption
approach
for the
of the American
Law Institute
in the
Torts,
found
Restatement of
approach
adopted
2d. If that
is to
state,
in this
adopted by
Legislature.
it should be
agree
Appeals
I
with the dissent in the Court of
entry
judgment
and would remand for
non
obstante veredicto.
(to affirm). Armstrong
LeBlanc,
J.
In
Coleman,
"the troublesome gence” expressed "our dissatisfaction with the * * * dogmatic application of the doctrine” when the facts would demonstrate that "in a dangerous position may not have exercised reason- protection”. emphasized able care for own his We questions appropri- that such "are matters more ately determined triers fact” and re- against versed the directed verdict the defendant.1 *35 presents This case also matters which are for However, the to determine. is the trial judge’s responsibility jury correctly to instruct the Judge on the law as it is the at time of trial. As majority opinion2 demonstrated his Holbrook Appeals, for the Court of the instruction in this 1 entry judgment Justice Lindemer would remand for of a n.o.v. I Appeals holding feel the Court of was correct the issue fact; therefore, say one involved “is are entitled to we not that defendants judgment non obstante veredicto as a matter of law”. 2 (1974). 283; App Mich NW2d 310 397 Coleman, Dissenting Opinion J. elements subse- the
case "was insufficient explained”.3 fully quent negligence not were included these The trial court’s instructions negligence: subsequent statements on Mrs. Zeni her "Now, though you find even danger, position of in a placed herself own that will not defeat Karen failed hand damages if defendant claim for her care with the means at ordinary to use known of have knew should after defendant danger. Mrs. Zeni’s Zeni, Mrs. was contrib- you plaintiff, "If that the find [sic], instructions
utorily
just
in this
negligent, as
stated
proof
her claim that
the burden of
the
has
*
**
negligent
subsequently
the defendant Karen was
that
care
have
Zeni,
is,
ordinary
to use
failed
that the
Karen
defendant
or should
after she knew
with
means at hand
plaintiff,
danger
Mrs.
in which
known of the
contributory negligence.
placed by her own
was
negli-
süch
negligent "If
herself was
your
injuries,
to her
gence proximately contributed
only if the defendant
will
for the
verdict
was
these instructions
explained in
previously
subsequently negligent as
negligence prox-
subsequent
and such
injuries.
imately
plaintiff’s
caused the
plain-
if
for the defendants
"Your verdict will be
Zeni,
tiff,
or if the defendant
injured;
Mrs.
negligent,
negli-
if
such
negligent; or
was not
Karen
gence
or if
injuries;
proximate
not a
cause
negligent and such
plaintiff herself was
contributing
injuries,
of her
cause
was a
Education,
Ypsilanti
my opinion
Compare
Board of
Javis v
no
"when
Justice Williams would reverse the Court of Appeals and affirm the verdict because he believes * * * judge guided jury the trial "in effect Appeals the Court of wished him I to”. do not find that same "effect” and believe was not fully instructed "as to the relevant factors to be considered” under the law as it at the existed time of trial. adopt
I also believe that if we are to the stan- projected by dards so Justice we do should Williams, asking after for comments from the bench I and bar. am satisfied that our decision in Arm- strong provides adequate area, direction in this doing previous Adop- in the so context decisions. tion of the Restatement sections would mark a departure interestingly vague and the use of some language. hastily. It should not be taken I would *37 Coleman, J. Dissenting must work with and who advice of those
seek on the traditional gloss apply such standards. the mer- care and with doctrine should be viewed adoption in this prior weighed its and demerits instructions). standard (e.g., or another form to the "last clear chance” I opposed am not However, superimpose not I would doctrine. according tried upon case which was this I also do subsequent negligence. doctrine of in the new instruc- agree language with all of the 14.01 to be As Instruction Jury tion. Standard chance” the "last clear doctrine abolished and enlighten- substituted, be courteous it would adop- to its ing prior official receive comments tion. Appeals.
I the Court of would affirm Notes indicate