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Product Liability

Posted December 3, 2018

Under Michigan law, a product liability action is an action based on a legal or equitable theory of liability brought for the death of a person or for injury to a person or damage to property caused by or resulting from the production of a product. One common requirement in all product liability claims is a finding of a defect in the product. A defect in the product can be established through a variety of theories that include the following:

(1) negligent design of the product;

(2) negligent manufacture of the product;

(3) negligent failure to warn about some aspect of the product;

(4) breach of an express or implied warranty; or

(5) misrepresentation or fraud about the product.


Because a product will be the key piece of evidence in this type of claim, the plaintiff and their attorney must be particularly attuned to evidentiary considerations necessary to successfully maintain their claim. These include:

(1) issues regarding preserving the actual product involved in the lawsuit;

(2) obtaining exemplar or similar products for comparison; and

(3)understanding the market for these types of products.


In a recent Michigan products liability case, the Michigan Court of Appeals held that must an injured party must prove a defect attributable to the manufacturer and contributory connection between that defect and the injury or damage of which is the cause of the suit. In all product liability actions, a plaintiff must plead and prove the following: (1) the product is defective; (2) the defect caused the injury or damage; and (3) injury or damage was sustained.

Proof of Negligence under No-Fault:

Posted November 19, 2018

The requisite proofs of motor vehicle negligence are essentially the same as for a typical negligence case, except that in addition to proving the basic elements of negligence duty, breach, causation, and damages, the plaintiff must establish a threshold injury of death, permanent serious disfigurement, or serious impairment of a body function.

Duty of Care

The degree of care owed depends on multiple factors, such as the size, type, and condition of the involved vehicles, the nature and character of the road surface, weather conditions, the amount of traffic, the time of day, the presence of pedestrians, and the age of the pedestrians or the nonoperators of motor vehicles. All of the factors and acts leading to the accident and injury must be carefully evaluated in assessing the proofs of negligence.

Generally, a motor vehicle driver owes a duty of care to anyone who may reasonably and foreseeably be injured as the result of negligent acts or omissions, regardless of whether the person is actually physically located on the roadway. Typically, this duty extends to other individuals using the highways, including motorcyclists, bicyclists, pedestrians, guests or passengers, persons stopped along the roadway in disabled vehicles, and persons performing highway maintenance at or near the highway.

Statutory Duties

Many Michigan statutes regulate the use of motor vehicles on the highway. See MCL 257.1 et seq. The most common statutory violations are of the traffic regulations found at MCL 257.601–.714b. In Michigan, the violation of a statute creates a case in which a jury may infer negligence. However, this is a rebuttable presumption. For example, where defendant, while recognizing that the road was icy, hit a patch of ice and as a result skidded across the centerline, the court held that her violation of the statute requiring drivers to keep to the right was excused. Young v Flood, 182 Mich App 538, 452 NW2d 869 (1990);

Seat Belt Statute

This statute has an impact on comparative negligence issues in third-party vehicle negligence cases. The statute provides that the failure to wear a seat belt may be considered evidence of negligence but may only reduce the recovery for damages arising out of the failure to wear a seat belt by not more than 5 percent. MCL 257.710e(6). This provision reverses earlier common law, which held that failure to wear a seat belt was not considered evidence of negligence.

Owner Liability

In Michigan, the owner of a motor vehicle is, by statute, liable for any negligent acts committed by a driver of the automobile if the owner has expressly or impliedly consented to or has knowledge of the use of that vehicle by the negligent operator. See MCL 257.401. Knowledge and consent are presumed if at the time of the accident, the motor vehicle is being driven by a parent, a sibling, a child, or another immediate family member of the owner. MCL 257.401(1). However, the operation of a motor vehicle by a person who is not a member of the owner’s family gives rise to a rebuttable common-law presumption of consent even when the owner has leased or rented out the vehicle. This presumption is not conclusive and the existence of the presumption does not shift the ultimate burden of proof.


No-Fault Act:

Posted October 12, 2018

The no-fault act divides the rights of the injured person into two potential types of claims: first-party and third-party.An accident victim may bring a direct claim, a first-party claim, against the responsible no-fault insurer for benefits. The responsible insurer is required to pay no-fault first-party benefits to the claimant, even if the claimant is wholly at fault in causing the injury-producing accident. This is normally the claimant’s own insurer. A first-party claim is not dealt with under tort, but rather in contract.

No-fault first-party benefits are provided whenever a person sustains an accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. MCL 500.3105(1). Available first-party benefits include medical expenses, wage loss, replacement services for up to three years, survivor’s economic losses, and funeral expenses. These are commonly referred to as personal protection insurance (PIP) benefits. Actual attorney fees are available if the insurer unreasonably refuses to pay or unreasonably delays paying first-party benefits. MCL 500.3148(1). In addition, overdue benefits are subject to penalty interest at 12 percent per year. MCL 500.3142(3).

In Moore v Secura Ins, 482 Mich 507, 759 NW2d 833 (2008), the Michigan Supreme Court seemed to explain away a small jury interest award by reaching some factual conclusions and, therefore, refused to award a no-fault attorney fee for the trial work since the benefit had been paid long before the trial occurred. Because first-party claims are contract claims, a detailed discussion of these claims is beyond the scope of this chapter. However, various first-party issues are mentioned throughout the chapter because they often interplay with third-party cases. For an in-depth discussion of first-party claims.

MCL 500.3105







Understanding your rights is essential when someone you love suffers a wrongful death. The Southwest Michigan Civil Litigation Attorneys at Hettinger & Hettinger, P.C. have experience in nearly every facet of civil litigation and personal injury..