The Committee on Model Civil Jury Instructions, which has been delegated the responsibility to suggest and adopt amendments to the instructions, proposes to delete MCJI 25.41, governing the negligence of the plaintiff in product liability cases, and amend MCJI 25.45, governing the fault of non-parties, to add those provisions to that instruction.
The amendment, which is ostensibly to combine the instructions regarding allocation of fault, would also
- Add language to the non-party instruction that informs the jury that its allocation of fault to a non-party will reduce the verdict against the defendant, and
- remove all reference to breach of warranty claims.
The removal of breach of warranty references may do more harm than good. It may open the door to an argument, in the "fog of trial", that it should apply only in product liability cases predicated on negligence. The current explicit reference to breach of warranty claims would obviate that concern.
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