Zeni v. Anderson - 56 Mich. App. 283, 224 N.W.2d 310 (1974)

Rule:

If a plaintiff's negligence is shown to be a remote cause of her injury, the doctrine of subsequent negligence is applicable. The proof should be clear and convincing that a defendant discovered or should have discovered the plaintiff's peril by exercising ordinary care and diligence and by use of the means at hand had time and ability to avert the threatened injury. The doctrine does not apply where the negligence of both parties is concurrent and proximately causes plaintiff's injury.

Facts:

Plaintiff Mrs. Zeni, a 56-year-old registered nurse employed at the University Health Center, parked her car in parking lot X. Thereafter, she walked along Seventh Street and then over to the south side of Lee Drive. At about that time, defendant Karen Anderson, a 20-year-old single student, accompanied by a passenger, was coming from the northwest and heading southeast on University Drive. Defendant was driving a yellow Ford Mustang automobile, owned by her father, Donald, codefendant in this action. Plaintiff was struck by defendant's automobile. She suffered serious injuries, including development of an intracerebral hematoma in the right temporal area. In order to remove the hematoma, neurosurgery was performed on plaintiff. After an extended period of convalescence, plaintiff returned to work on a part-time basis with continuing restrictions on her duties. She manifested some permanent disability. Plaintiff had retrograde amnesia and retained no memory from the time she left parking lot X that morning until sometime after the impact. Thus, there was no means of determining whether she discovered the defendant behind her. In her complaint, plaintiff alleged that defendant was negligent. Defendants denied all allegations of negligence and pled the affirmative defense of contributory negligence, based upon a violation of MCLA 257.655; MSA 9.2355. A jury verdict was entered for plaintiff and the trial court granted plaintiff’s personal injury judgment against defendants and denied all of the latter’s post-trial motions. Defendant challenged the order and contended that the trial court failed to instruct the jury as to all essential elements on the doctrine of subsequent negligence and the trial court's use of a standard jury instruction. 

Issue:

Did the court correctly rule in favor plaintiff in its personal injury action?

Answer:

No.

Conclusion:

The court reversed the trial court's personal injury judgment for the plaintiff and remanded the case for a new trial. The court held that the trial court's jury instruction on proximate cause, correlated with the instruction on burden of proof that was given, was insufficient because the elements of subsequent negligence were not fully explained. The court also reasoned that the instruction should not have been used when there was evidence of the plaintiff’s precedent negligence, placing her in a position of danger. Thus, if plaintiff’s negligence was concurrent with the defendant’s negligence, the instruction was not applicable. Additionally, if the plaintiff was in peril without negligence on her part, the instruction was not applicable because there was no precedent negligence to excuse. The court, thus, concluded that the instruction was deficient.