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12/08/75 SERRA v. DEMAESTRI

December 8, 1975

SERRA
v.
DEMAESTRI



Appeal from Cheboygan, Joseph P. Swallow, J.

T. M. Burns, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. Witnesses -- Evidence -- Prior Inconsistent Statements -- Impeachment.

Prior inconsistent statements of a witness, who is also a party to the action, may be used both for impeachment purposes and as substantive evidence.

2. Witnesses -- Prior Inconsistent Statements -- Substantive Evidence -- Instructions to Jury.

Failure of a trial Judge to instruct the jury that prior inconsistent statements of a party may be used as substantive evidence is reversible error where a proper instruction was requested (SJI 3.01).

3. Negligence -- Contributory Negligence -- Wilful and Wanton Misconduct.

Contributory negligence is not a defense to an action based on wilful and wanton misconduct.

4. Negligence -- Wilful and Wanton Misconduct -- Elements.

Wilful and wanton misconduct is a negligence concept and includes the following elements: (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.

5. Torts -- Intentional Torts -- Negligence -- Infants -- Minors -- Seven-Year-Olds.

Minors who are seven years of age or older are liable for intentional torts as well as for their ordinary negligence.

6. Trial -- Instructions to Jury -- Minors -- Wilful Misconduct -- Standard of Care.

Instructions to the jury, in a case involving wilful misconduct of a minor, must set out the standard of care of a child of like age, intelligence and ...


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