Comparative fault, nonparties and shared liability in Michigan

Damages are reduced by the injured person's percentage of fault. Noneconomic damages are cut off only if that percentage is greater than the aggregate fault of the others, whether or not parties. Because all percentages are assigned out of 100 percent of the total fault, exactly 50 percent is not greater than the others' 50, and 51 percent is. At 51 percent economic damages are still reduced, but noneconomic damages are not awarded. The 2012 amendment of MCL 600.2959 applies to causes of action that arose on or after Mar. 28, 2013.

MCL 600.2958 provides that, subject to section 2959, a plaintiff's contributory fault does not bar recovery of damages in an action for personal injury, property damage or wrongful death. MCL 600.2959 requires the court to reduce the damages by the percentage of comparative fault of the person on whose injury the damages are based. If that person's percentage of fault is greater than the aggregate fault of the other person or persons, whether or not parties to the action, the court reduces economic damages by that percentage and noneconomic damages shall not be awarded. The jury or judge finds the percentage of the total fault of all persons that contributed to the injury, including each plaintiff (MCL 600.6304(1)(b)), so the plaintiff's share and the others' combined share total 100 percent, and the plaintiff's percentage is greater than the others' aggregate exactly when it exceeds 50. The following figures are illustrative only and are not predictions. Suppose a jury finds total damages of $100,000, made up of $40,000 in economic loss and $60,000 in noneconomic loss. At 49 percent fault, the award is reduced to $20,400 in economic and $30,600 in noneconomic damages, or $51,000. At exactly 50 percent, it is $20,000 and $30,000, or $50,000. At 51 percent, economic damages are $19,600 and noneconomic damages are zero, so the total is $19,600. One percentage point therefore changes the result by about $30,000 in this example. Section 2959 as amended by 2012 PA 608 applies only to actions in which the cause of action arose on or after Mar. 28, 2013. A separate statute applies a different line for a person whose ability to function was impaired by alcohol or a controlled substance (MCL 600.2955a, 50 percent or more), and motor vehicle noneconomic claims have their own comparative fault provision (MCL 500.3135(2)(b)).

Authority: MCL 600.2958; MCL 600.2959; MCL 600.6304(1)(b). Reviewed Oct. 2026.

In a case involving the fault of more than one person, the court instructs the jury to answer special interrogatories on the plaintiff's total damages and the percentage of the total fault of all persons. In setting the percentages, the jury considers both the nature of each person's conduct and the extent of the causal relation between the conduct and the damages claimed. Fault includes acts, omissions, intentional conduct, breach of warranty, breach of a legal duty and conduct giving rise to strict liability, if it is a proximate cause.

In an action for personal injury, property damage or wrongful death involving the fault of more than one person, including third-party defendants and nonparties, MCL 600.6304(1) provides that, unless all parties agree otherwise, the court instructs the jury to answer special interrogatories, or if there is no jury makes findings, stating the total amount of each plaintiff's damages and the percentage of the total fault of all persons that contributed to the injury, including each plaintiff and each person released from liability under MCL 600.2925d, regardless of whether the person was or could have been named as a party. Under MCL 600.6304(2), the trier of fact considers both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed. The statute defines fault broadly: it includes an act, an omission, conduct (including intentional conduct), a breach of warranty, a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party (MCL 600.6304(8)). The court then determines each plaintiff's award in accordance with the findings, subject to any statutory reductions, and enters judgment against each party, but not against a person released under MCL 600.2925d (MCL 600.6304(3)). Section 2957(1) adds that liability is allocated in direct proportion to each person's percentage of fault.

Authority: MCL 600.6304(1), (2), (3) and (8); MCL 600.2957(1). Reviewed Oct. 2026.

No. Under MCL 600.2957(3), assessments of fault for nonparties are used only to accurately determine the fault of the named parties. A finding of fault against a nonparty does not subject that nonparty to liability in the action and may not be introduced as evidence of liability in another action. A party who learns of a nonparty through a notice can move to add that person as a defendant within 91 days.

Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties, and if fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action (MCL 600.2957(3)). That has two practical effects. First, a share allocated to an unnamed person reduces what the named defendants can be required to pay, because liability is several only (MCL 600.2956; MCL 600.6304(4)), and the plaintiff has no judgment against the nonparty. Second, the plaintiff has a way to change that: on motion within 91 days after identification of a nonparty, the court shall grant leave to file and serve an amended pleading alleging one or more causes of action against that nonparty, and a claim added that way is not barred by a period of limitation unless it would have been barred when the original action was filed (MCL 600.2957(2)). The court rule fixes the process on the defense side. The trier of fact is not to assess a nonparty's fault unless notice was given (MCR 2.112(K)(2)). The notice names the nonparty and the basis for believing the nonparty is at fault, and is due within 91 days after the party files its first responsive pleading, with later filing allowed on a showing that the facts were not and could not with reasonable diligence have been known earlier, as long as the late filing does not cause unfair prejudice (MCR 2.112(K)(3)). A party served with the notice may file an amended pleading stating a claim against the nonparty within 91 days of service of the first notice identifying that nonparty, and the court may permit later amendment under MCR 2.118 (MCR 2.112(K)(4)).

Authority: MCL 600.2957(2) and (3); MCR 2.112(K)(2), (3) and (4); MCL 600.2956 and MCL 600.6304(4). Reviewed Oct. 2026.

Generally only its own share. In personal injury, property damage and wrongful death actions, liability is several only and not joint, and a person is not required to pay more than his or her percentage of fault, except as the statute provides. A defendant convicted of certain crimes (gross negligence or alcohol or controlled-substance offenses) is jointly and severally liable, and medical malpractice cases have separate rules. An employer's vicarious liability for an employee remains.

MCL 600.2956 provides that, except as provided in MCL 600.6304, the liability of each defendant for damages in a personal injury, property damage or wrongful death action is several only and not joint, but it does not abolish an employer's vicarious liability for an employee's act or omission. MCL 600.6304(4) repeats that liability is several only and that a person shall not be required to pay damages greater than his or her percentage of fault, and says those provisions do not apply to a defendant that is jointly and severally liable under MCL 600.6312. Section 6312 makes a defendant found liable for an act or omission that causes injury jointly and severally liable if the act or omission is a crime, an element of which is gross negligence, for which the defendant is convicted, or a crime, an element of which is the use of alcohol or a controlled substance, for which the defendant is convicted and that violates one of the listed provisions, which include section 625 of the Michigan vehicle code (MCL 257.625). Medical malpractice has its own provisions: where an action includes a medical malpractice claim against a person or entity described in MCL 600.5838a(1), the liability of each defendant is joint and several if the plaintiff is without fault, and if the plaintiff has fault, the court on motion made not later than 6 months after final judgment determines whether part of a party's share is uncollectible and reallocates it among the other parties by their percentages of fault, with a limit that a party need not pay a reallocated amount above its own percentage (MCL 600.6304(6)). A governmental agency other than a governmental hospital or medical care facility is not required to pay more than its own percentage of an uncollectible amount (MCL 600.6304(7)).

Authority: MCL 600.2956; MCL 600.6304(4), (6) and (7); MCL 600.6312. Reviewed Oct. 2026.

A good-faith release or covenant not to sue given to one of two or more persons for the same injury does not discharge the others unless its terms so provide, and it discharges the person who received it from contribution liability to others. The released person's fault is still included in the fault percentages, and judgment is not entered against that person.

MCL 600.2925d provides that if a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons for the same injury or wrongful death, the release or covenant does not discharge one or more of the other persons from liability unless its terms so provide, and it discharges the person to whom it is given from all liability for contribution to any other person. Two other provisions connect settlement to the fault allocation. The percentage-of-fault finding includes each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party (MCL 600.6304(1)(b)), and judgment is not entered against a person released under section 2925d (MCL 600.6304(3)). Because liability is several only and a person is not required to pay more than his or her percentage of fault (MCL 600.6304(4)), the share placed on a released settling person is not collected from the remaining defendants. The text of these sections does not address whether the settlement amount is credited against the remaining defendants' share. Because the released person's fault is included in the allocation, it also counts toward the aggregate fault of the other persons in the MCL 600.2959 comparison.

Authority: MCL 600.2925d; MCL 600.6304(1)(b), (3) and (4); MCL 600.2959. Reviewed Oct. 2026.

It can. Under MCL 600.2955a it is an absolute defense that the injured person had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance and, as a result of that impairment, was 50 percent or more the cause of the accident or event. If the person was less than 50 percent the cause, the award is reduced by that percentage. Note that this line is 50 percent or more, not more than 50.

MCL 600.2955a(1) makes it an absolute defense in an action for death or injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was 50 percent or more the cause of the accident or event that resulted in the death or injury. If the individual was less than 50 percent the cause, an award of damages shall be reduced by that percentage. The statute defines impaired ability to function as a state in which, as a result of consuming intoxicating liquor or a controlled substance, the individual's senses are impaired to the point that the ability to react is diminished from what it would be absent the consumption, and it creates a presumption of impaired ability to function if, under the standard of section 625a of the Michigan vehicle code, a presumption would arise that the individual's ability to operate a vehicle was impaired (MCL 600.2955a(2)(b)). Two points differ from the general comparative fault rule. First, the cutoff is 50 percent or more of the cause, while the general noneconomic cutoff in MCL 600.2959 applies when the injured person's fault is greater than the aggregate fault of the others. Second, the effect at the cutoff is different: under section 2955a the defense is absolute, so it bars economic damages as well as noneconomic damages, while under section 2959 economic damages remain, reduced.

Authority: MCL 600.2955a(1) and (2)(b). Reviewed Oct. 2026.

Yes. Comparative negligence is an affirmative defense in Michigan. MCR 2.111(F)(3) lists contributory negligence among the affirmative defenses that must be stated in the responsive pleading, with the supporting facts under a separate heading, and under MCR 2.111(F)(2) a defense not asserted is waived. A defendant that left it out can ask for leave to amend, which the court rules say shall be freely given when justice so requires (MCR 2.118(A)(2)).

MCR 2.111(F)(2) provides that a defense not asserted in the responsive pleading or by motion is waived, except lack of jurisdiction over the subject matter and failure to state a claim. MCR 2.111(F)(3) provides that affirmative defenses must be stated in the responsive pleading, as originally filed or as amended under MCR 2.118, and lists contributory negligence among the examples, requiring the facts constituting the defense to be stated under a separate and distinct heading. The Michigan Supreme Court has said that comparative negligence is an affirmative defense (Riddle v McLouth Steel Products Corp, 440 Mich 85, 98 (1992)). The Court of Appeals has applied the pleading rules to it, holding that a defendant waived the comparative negligence defense by failing to restate it in the most recent amended answer (Grzesick v Cepela, 237 Mich App 554, 561-563 (1999)). MCL 600.2959 provides that the court shall reduce damages by the percentage of comparative fault of the injured person, and MCL 600.6304(1)(b) directs the finder of fact to determine the percentage of the total fault of all persons, including each plaintiff. Whether that mandatory reduction language excuses a defendant that never pleaded the injured person's fault is a separate question that the decisions on pleading do not address. The fault of a nonparty has its own notice requirement (MCR 2.112(K)). A pleading may be amended once as of course within 14 days after the pleading is served if no responsive pleading is required, and otherwise by leave of court or written consent, with leave to be freely given when justice so requires (MCR 2.118(A)(1), (2)).

Authority: MCR 2.111(F)(2) and (3); Riddle v McLouth Steel Products Corp, 440 Mich 85, 98 (1992); Grzesick v Cepela, 237 Mich App 554, 561-563 (1999); MCR 2.118(A)(1) and (2); MCL 600.2959; MCL 600.6304(1)(b). Reviewed Oct. 2026.