James v. Alberts

Decision Date15 May 2001
Docket NumberDocket No. 114454, Calendar No. 8.
PartiesDavid A. JAMES, Plaintiff-Appellee, v. Roy ALBERTS, Defendant-Appellant.
CourtMichigan Supreme Court

Martin L. Critchell, counsel, Detroit, MI, for plaintiff-appellee.

Braun, Kendrick, Finkbeiner, P.L.C. (by Scott C. Strattard), Saginaw, MI, for defendant-appellant.



At issue is whether the volunteer doctrine bars plaintiff David James's premises liability action for injuries incurred while he assisted defendant Roy Alberts in digging a trench. The trial court granted summary disposition to Alberts on the basis of the volunteer doctrine, which generally states that the only duty owed to a volunteer is to refrain from injuring him by a wilful or wanton act. The Court of Appeals reversed because of binding Court of Appeals authority indicating that the volunteer doctrine is limited to respondeat superior liability. We affirm the Court of Appeals decision, albeit for different reasons and in so doing abolish the volunteer doctrine.

Facts and Proceedings

On November 27, 1992, James assisted Alberts in digging a trench from Alberts' house to his pole barn to put in conduit for electricity. According to James, the trench was about 40 feet long, 10 inches wide and 18 inches deep. James fell as he stepped out of the trench and broke his left arm. He testified that just before he fell, he felt like he could not lift his left foot. Alberts told James that he tripped over a partially buried cable. However, James did not see a cable.

The parties disagreed regarding whether Alberts invited James to assist him in digging the trench. Alberts testified that he did not think he called James shortly before he planned to dig the trench; rather, James just happened to stop by and helped. In contrast, James testified that Alberts called him the night before the incident, seeking help in digging the trench.

James sued Alberts for his injuries. The trial court granted summary disposition for Alberts on the basis of the volunteer doctrine. It concluded that James was a volunteer and that, under the volunteer doctrine, Alberts was not subject to liability for his injuries unless he caused them by a wilful and wanton act, which was not demonstrated here. The Court of Appeals reversed. 234 Mich.App. 417, 594 N.W.2d 848 (1999). It reversed because MCR 7.215(H)(1) required it to follow Ryder Truck Rental v. Urbane, 228 Mich. App. 519, 579 N.W.2d 425 (1998), which held that the volunteer doctrine was limited to respondeat superior liability. (The James panel stated that it believed that Ryder was wrongly decided.) The judges of the Court of Appeals were polled and a majority declined to convene a special panel. 234 Mich.App. 801, 600 N.W.2d 704 (1999). This Court granted leave to appeal. 461 Mich. 1009, 613 N.W.2d 718 (2000).

The Volunteer Doctrine

The applicability of a legal doctrine is a question of law. This Court reviews questions of law de novo. See Page v. Klein Tools, Inc., 461 Mich. 703, 709, 610 N.W.2d 900 (2000).

We begin by noting two basic legal principles that generally guide negligence actions. First, if a person is injured by the direct negligence of another, whom he is attempting to assist, the latter's duty generally turns on foreseeability. See Moning v. Alfono, 400 Mich. 425, 439, 254 N.W.2d 759 (1977) ("The questions of duty and proximate cause ... both depend in part on foreseeability-whether it is foreseeable that the actor's conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.") Second, if a person assisting another's servant is injured by the servant and tries to sue the servant's master, the master's liability turns on agency principles. Under fundamental agency law, a principal is bound by an agent's actions within the agent's actual or apparent authority. Shinabarger v. Phillips, 370 Mich. 135, 141, 121 N.W.2d 693 (1963); Central Wholesale Co. v. Sefa, 351 Mich. 17, 25, 87 N.W.2d 94 (1957). This agency law concept, which could operate uneventfully, for example, in contracts, was not without its problems historically in torts. One problem was how to harmonize agency law with what was known as the fellow-servant rule in torts.

The fellow-servant rule generally barred an action against an employer for injuries resulting from a fellow servant's negligence. See Felgner v. Anderson, 375 Mich. 23, 32, 133 N.W.2d 136 (1965). Under this rule, if A had two employees, B and C, and B negligently injured C while operating within the scope of the authority given by A, C could not sue A. However, if C was not a fellow servant to B, but rather a volunteer assisting B, the fellow-servant rule did not apply and C could, if agency law held sway, sue A. Thus, in these two situations, similar except for the employee or volunteer status of C, different results would obtain. Said more theoretically, in the first hypothetical example, agency principles would be displaced by the fellow-servant rule, but in the second example, agency principles would control the outcome. Not surprisingly, courts faced with a case in which a fellow servant was without remedy were loath to give an otherwise similarly situated volunteer a better outcome. Thus a doctrine emerged, described as the volunteer doctrine, to place the volunteer under disabilities similar to those faced by the fellow servant. This can be seen in Michigan1 in Johnson v. E. C. Clark Motor Co., 173 Mich. 277, 286, 139 N.W. 30 (1912).

In Johnson, the plaintiff was injured while working with the defendant's employee to test a motor that the plaintiff was to purchase for his company. The Court held that the injured person, were he a mere volunteer not working for his own (or his employer's) interests, would be barred from recovery by the volunteer doctrine, even as he would have been barred by the fellow-servant rule if he had been a fellow servant. At 286, 139 N.W. 30, the Court stated the rule:

"One who, having no interest in the work, voluntarily assists the servant of another, cannot recover from the master for an injury caused by the negligence or misconduct of such servant, since he can impose no greater duty on the master than a hired servant."

With the introduction of worker's compensation law in 1912, and the corresponding demise of the fellow-servant rule, the reasons for the volunteer doctrine had largely vanished. There remained no reason to legally disable volunteers because fellow servants were no longer without legal redress. This Court noted this in Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 512, 273 N.W. 783 (1937), where it held that this rationale for the doctrine

is rendered somewhat doubtful due to the provisions of the various workmen's compensation acts declaring that the negligence of a fellow servant shall be no defense to an action against the employer for injuries sustained in the course of the employment.

The Diefenbach Court correctly concluded that the fellow-servant rule, which created the need for the volunteer doctrine, was no longer part of our law. This should have set the stage for the abolition of the volunteer doctrine. However, instead, the Diefenbach Court opted to retain the doctrine, stating at 512, 273 N.W. 783:

The better view would appear to be that the volunteer cannot recover because no duty is owed to him other than not to injure him by wilful and wanton acts.

Little analysis was provided for this new rationale, which arguably extended the doctrine to the context of direct liability. We note that it was unnecessary to resort to the volunteer doctrine in order to reach the conclusion that the plaintiff was not entitled to recovery from the store as traditional agency principles would have led to the identical result.2 All of which is to say that we believe it would have been better for the Diefenbach Court to opine, as Justice Talbot Smith did sometime later with respect to another antiquated rule:

The reasons for the old rule no longer obtaining, the rule falls with it. [Montgomery v. Stephan, 359 Mich. 33, 49, 101 N.W.2d 227 (1960).][3]

That we do today.

We return this area of the law to traditional agency and tort principles, comfortable that they will better resolve the matters to which the doctrine might have applied. Accordingly, we agree, but for different reasons, with the Court of Appeals that...

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