Negligence: Duty, Breach, Causation, and Damages
Negligence is the spine of the Michigan personal injury exam: expect questions that separate duty from breach, and cause in fact from proximate cause.
Duty and breach
Michigan requires duty, breach, causation, and damages. Duty is generally a question of law, and every person owes reasonable care to foreseeable plaintiffs. The standard is the ordinary reasonable person under like circumstances; professionals are held to their profession's standard. Breach may be shown directly, by res ipsa loquitur (the instrumentality was in the defendant's exclusive control and the event ordinarily does not happen without negligence), or by negligence per se where a statute sets the standard, the plaintiff is in the protected class, and the harm is the type the statute guards against.
Cause and comparative fault
Cause in fact (but-for) is paired with proximate cause, which in Michigan asks whether the injury was a foreseeable consequence of the breach. Under MCL 600.2959 and MCL 600.6304, fault is allocated among all persons contributing to the injury, parties and nonparties alike; recovery is reduced by the plaintiff's percentage, and a plaintiff more than 50% at fault recovers nothing. MCL 600.2956 abolished joint and several liability in most cases.
Worked example
A driver runs a red light and strikes a pedestrian who stepped out mid-block while looking at a phone. The jury assigns 70% to the driver and 30% to the pedestrian. A $100,000 award becomes $70,000. Had the split been 55/45 against the pedestrian, recovery would be zero under MCL 600.2959.
Traps
Reducing proximate cause to bare but-for cause; failing to identify nonparty at-fault actors so the jury can allocate fault to them; assuming any comparative fault bars recovery; overlooking the sudden emergency doctrine and the open and obvious defense in adjacent contexts.