James v. Alberts

Decision Date09 March 1999
Docket NumberDocket No. 195751
Citation234 Mich.App. 417,594 N.W.2d 848
PartiesDavid A. JAMES, Plaintiff-Appellant, v. Roy ALBERTS, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Frank R. Langton & Associates, P.C. (by Douglas J. Maskin ), Sterling Heights, for the plaintiff.

Braun Kendrick Finkbeiner, P.L.C. (by Michael E. Wooley ), Bay City, for the defendant.

Before: SAAD, P.J., and WAHLS and GAGE, JJ.

SAAD, P.J.

Plaintiff filed a complaint against defendant seeking damages for injuries plaintiff suffered while voluntarily helping defendant dig a trench. The trial court granted summary disposition for defendant on the ground that the volunteer doctrine barred plaintiff's claim. MCR 2.116(C)(10). Reluctantly, we reverse and remand in accordance with a binding precedent set by this Court.

In Ryder Truck Rental, Inc. v. Urbane, 228 Mich.App. 519, 579 N.W.2d 425 (1998), the plaintiff was injured by a rented truck while voluntarily helping a friend move. The plaintiff sued both the friend and the truck rental firm, but ultimately settled the claim with the friend. At issue was whether the truck rental firm had a right of contribution against the friend. The trial court determined that under the volunteer doctrine, the friend owed the plaintiff "only a duty of care not to injure him through wilful or wanton acts" and concluded that the friend could not be held liable for the incident. Id., 522, 579 N.W.2d 425. On appeal, the rental company argued that the volunteer doctrine was "no longer viable and, even if viable, does not apply outside the workplace." Id. A majority of a panel of this Court agreed and held that the volunteer doctrine "is a limitation purely on respondeat superior liability. Under the volunteer doctrine, a master is not liable for ordinary negligence of his servant who has injured a third person having the status of a volunteer." Id., 523, 579 N.W.2d 425. Chief Judge Corrigan concurred in the result, averring that the volunteer doctrine was not limited to respondeat superior liability, but opining that the volunteer doctrine was not applicable where the alleged tortfeasor authorized the volunteer's assistance. Id., 526, 530-531, 579 N.W.2d 425.

Here, we reverse the judgment for defendant for the sole reason that MCR 7.215(H)(1) binds us to the precedent set by the holding in Ryder Truck, supra. We believe, however, that Ryder Truck was wrongly decided and is contrary to established state Supreme Court precedent.

In Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 512-513, 273 N.W. 783 (1937), this state recognized that one who voluntarily performs work for another cannot recover for ordinary negligence. In Pace v. Gibson, 357 Mich. 315, 319-320, 98 N.W.2d 654 (1959), overruled in part on other grounds in Felgner v. Anderson, 375 Mich. 23, 50-51, 56-57, 133 N.W.2d 136 (1965), our Supreme Court reiterated this principle and set forth the parameters of the volunteer doctrine:

This Court in Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 273 N.W. 783, recognized the general rule that one who is merely a volunteer in rendering service to another cannot recover if injured because of negligence, there being no duty other than not to injure him by willful or wanton act.... If, therefore, he [the plaintiff] was in fact a volunteer assuming the risk of negligent injury he is not entitled to recover. Smedley v. Mashek Chemical & Iron Co., 189 Mich. 64 [155 N.W. 357 (1915) ]; Diefenbach v. Great Atlantic & Pacific Tea Co, supra.

Contrary to this Court's holding in Ryder Truck, supra, this broad pronouncement of the volunteer doctrine extends well beyond the respondeat superior context. More importantly, we believe the...

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2 cases
  • James v. Alberts
    • United States
    • Michigan Supreme Court
    • May 15, 2001
    ...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 (19......
  • James v. Alberts, Docket No. 195751.
    • United States
    • Court of Appeal of Michigan — District of US
    • March 23, 1999
    ...N.W.2d 704JAMES v. ALBERTS. Docket No. 195751. Court of Appeals of Michigan. March 23, 1999. 234 Mich.App. 417, 594 N.W.2d 848 SPECIAL The judges of this Court having been polled pursuant to MCR 7.215(H), and the result of the poll being a majority of the judges opposed convening a special ......

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