James v. Alberts

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                      FILED MAY 15, 2001





                DAVID A. JAMES,


                        Plaintiff-Appellee,


                v	                                                                             No.          114454


                ROY ALBERTS,


                     Defendant-Appellant.

                ____________________________________

                BEFORE THE ENTIRE BENCH 


                TAYLOR, J.


                        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’s 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



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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 NW2d 848


(1999).    It reversed because MCR 7.215(H)(1) required it to


follow Ryder Truck Rental v Urbane, 228 Mich App 519; 579 NW2d


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 NW2d 704


(1999).    This Court granted leave to appeal.   461 Mich 1009


(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 NW2d 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


NW2d 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



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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 NW2d 693 (1963); Central Wholesale Co v


Sefa, 351 Mich 17, 25; 87 NW2d 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 NW2d 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.



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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 NW 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, 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



     1
      For discussion of the volunteer doctrine in other

states, see Kelly v Tyra, 103 Minn 176; 114 NW 750 (1908);

Kentucky Lumber Co v Nicholson, 157 Ky 812; 164 SW 84 (1914);

Callaham v Carlson, 85 Ga App 4; 67 SE2d 726 (1951); Poulson

v Poulson, 1 Ill App 2d 201; 117 NE2d 310 (1954).


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      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 NW 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:


           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



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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 NW2d 277 (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



     2
      In Diefenbach, the plaintiff entered a grocery store,

voluntarily involved himself in the pursuit of a rat, and was

injured when one of the store clerks, intending to strike the

rat, stabbed the plaintiff’s foot with a fish knife. There is

no indication that the store’s agents had actual or apparent

authority to allow the plaintiff to participate in the rat

chase. This would have been fatal to the plaintiff’s claim

against the store.

     3
      The Diefenbach Court’s retention of the volunteer

doctrine created much confusion about the scope of the

doctrine in the years that followed.     Indeed, this can be

seen in our Court of Appeals efforts to grapple with the rule

in, e.g., Ryder, supra, in which the majority concluded that

the volunteer doctrine was limited to respondeat superior

liability, but the concurring opinion concluded that it also

applies in the context of direct liability.


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Court of Appeals that this doctrine does not bar plaintiff’s


claim here, and affirm its reversal of the trial court’s grant


of summary disposition for Alberts.


                   Premises Liability Law


     In order to provide guidance on remand, we note that the


present case is a premises liability action.   James’ claim is


that he was injured by a condition of the land.   The alleged


injury occurred while he and Alberts were digging the trench;


however, James contends that it arose out of a condition of


the land, not out of the activity itself.    In his complaint,


James alleges that Alberts breached his duties as a landowner.


     This Court recently set forth the duty of a landowner


with respect to conditions on his land in Stitt v Holland


Abundant Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88


(2000):


          Historically, Michigan has recognized three

     common-law categories for persons who enter upon

     the land or premises of another: (1) trespasser,

     (2) licensee, or (3) invitee.    Michigan has not

     abandoned these common-law classifications. Each

     of these categories corresponds to a different

     standard of care that is owed to those injured on

     the owner's premises. Thus, a landowner's duty to

     a visitor depends on that visitor's status.


          A "trespasser" is a person who enters upon

     another's land, without the landowner's consent.

     The landowner owes no duty to the trespasser except

     to refrain from injuring him by "wilful and wanton"

     misconduct. 


          A "licensee" is a person who is privileged to

     enter the land of another by virtue of the


                              8
     possessor's consent. A landowner owes a licensee a

     duty only to warn the licensee of any hidden

     dangers the owner knows or has reason to know of,

     if the licensee does not know or have reason to

     know of the dangers involved. The landowner owes

     no duty of inspection or affirmative care to make

     the premises safe for the licensee's visit.

     Typically, social guests are licensees who assume

     the ordinary risks associated with their visit.


          The final category is invitees. An "invitee"

     is "a person who enters upon the land of another

     upon an invitation which carries with it an implied

     representation, assurance, or understanding that

     reasonable care has been used to prepare the

     premises, and make [it] safe for [the invitee's]

     reception." The landowner has a duty of care, not

     only to warn the invitee of any known dangers, but

     the additional obligation to also make the premises

     safe, which requires the landowner to inspect the

     premises and, depending upon the circumstances,

     make any necessary repairs or warn of any

     discovered hazards. Thus, an invitee is entitled

     to the highest level of protection under premises

     liability law. [Citations omitted.]


     Under Stitt, Alberts’ duty, as a landowner, turns on


James’ status at the time of the injuries. Once James’ status


as a trespasser, licensee, or invitee is established, the next


questions are whether Alberts breached the attendant duty and


whether any such breach proximately caused the injuries at


issue.   See, e.g., Bertrand v Alan Ford, Inc, 449 Mich 606,


613; 537 NW2d 185 (1995), citing Riddle v McLouth Steel


Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992).        We


remand this matter to the trial court for further proceedings


to resolve these questions.





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                              Conclusion


     We affirm the conclusion of the Court of Appeals and


remand this matter to the trial court for further proceedings


consistent with this opinion.


     CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , YOUNG , and MARKMAN ,


JJ., concurred with TAYLOR , J.





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