*1 RENTAL, RYDERTRUCK INC v URBANE 9, 1997, Rapids. Docket No. 199136. Submitted December at Grand 6, 1998, Decided March at 9:20 am. Ryder Rental, Inc., brought Truck a defendant in an action Rowif against it, L. and Bernadette Hawkins the Kent Circuit Court Trucking, Inc., Urbane, cross-complaint Atlas and Scott E. a filed against indemnity. Urbane for contribution and Rowif Hawkins had Urbane, backing up Ryder been when while truck that he Atlas, pinned legs against had rented from had Hawkins’ a wall. It alleged help was Rowif Hawkins had volunteered to Urbane immediately and, accident, attempting move before the had been pull loading ramp from the rear of the truck. Plaintiffs’ cause of against corporate action defendants was based on claims of negligence warranty allegation and breach of that arose out of the glove caught ramp that Rowif Hawkins’ had become on the handle. Ryder permitted settled with the Hawkinses and was to file a cross- against claim Urbane for contribution and indemnification. The court, Benson, J., granted summary disposition Robert A. respect Urbane with to the claim of the Hawkinses on the basis that under the volunteer doctrine Urbane owed Rowif Hawkins only duty injure through of care not to him wilful and wanton summary disposition granted respect acts and for Urbane with Ryder’s cross-claim for contribution on the basis that the dismissal of the Hawkinses’ claim Urbane on the basis of the volun- precluded Ryder’s recovery teer doctrine likewise of contribution subsequently, stipulation parties, from Urbane. The court of the Ryder’s remaining Ryder dismissed claim for indemnification. appealed. Atlas Appeals The Court of held: Ryder may only 1. recover contribution from Urbane if it is a joint joint him. tortfeasor with Whether Urbane is a tortfeasor hinges duty on whether he owed the same of care to Rowif Haw- by Ryder. applicable kins as was owed If the volunteer doctrine is case, under the circumstances of this Urbane owed Rowif Hawkins only duty injure through of care not to him wilful and wanton Accordingly, acts. if the volunteer doctrine in this case rela- Ryder against Urbane, tive the Hawkinses’ claim and Urbane joint would not be tortfeasors because the of care owed [Max refraining to Rowlf Hawkins was the from acts of refraining rather the acts of wilful and wan- ton conduct. respect respon- 2. The volunteer doctrine is a limitation with liability. superior doctrine, deat Under the volunteer a master is not *2 person having liable to a third the status of a volunteer for acts resulting ordinary negligence from the of a servant. pleaded case, prop- 3. Under the facts in this Rowlf Hawkins is erly regarded having purpose as the status of a volunteer for the application of the volunteer doctrine. application only 4. The volunteer doctrine has where the claim of liability liability arises in the context of the vicarious of a master respondeat superior under the doctrine of for the acts of the support servant. is master’s There the settled law of this state extending application or elsewhere for of the volunteer doc- beyond liability arising liability trine out of vicarious under the doc- respondeat superior thereby idiosyncratic trine of and to create liability niche where one would be shielded from for one’s own ordinary negligence. Accordingly, acts of because the volunteer applicable respect doctrine is not with to Rowlf Hawkins’ claim against and, thus, Urbane the standard of care owed Urbane rel- ordinary negligence, Ryder ative to that claim is for Urbane and are joint Therefore, grant summary disposi- tortfeasors. it was error to Ryder’s respect tion for Urbane with claim for contribution. Reversed. Corrigan, C.J., concurring result, in the stated that while it was grant summary disposition error for the trial court to for Urbane respect Ryder’s contribution, with claim for the error arose not applicable only liability arising because the volunteer doctrine liability respon- out of a master’s vicarious under the doctrine of superior servants, because, although deat for the acts of but rather applicable involving

the volunteer doctrine is under circumstance liability, applicable only an individual’s own the doctrine is where act, ques- the volunteer had not been invited to and there remains a tion of fact whether Urbane invited Rowlf Hawkins to him. assist — — Duty 1. Contribution Joint Tortfeasors of Care. party right payment judg- A has a to seek contribution for the of a only joint joint tortfeasors; parties ment tortfeasors are whose liability arises out of breaches of similar duties of care. — — — 2. Master Liability and Servant Volunteer Doctrine Vicarious Respondeat Superior. respect The volunteer doctrine is a limitation with based respondeat superior; on the doctrine of under the volunteer doc- Ryder Truck Rental v Urbane Opinion of the Court trine, person having a master is not liable to third the status of a resulting ordinary negligence for acts from the of a ser- volunteer vant; application respect the doctrine has no with to a claim that is direct, vicarious, liability. based on rather than (by and Garzia, VandeVeer P.C. Hal O. Carroll Wil- Ryder Heaphy), Rental, Inc., liam J. Truck and Trucking, Atlas Inc. Kreuger, (by Kreuger),

Nelson & P.C. Steven L. E. Scott Urbane. C.J., Corrigan,

Before: and Doctoroff JJ. Fitzgerald, J. Rental, Inc., Defendants Truck Fitzgerald, Trucking, appeal right Inc.,1 Atlas as of the order Ryder’s

dismissing cross-claim defendant appeal, Ryder Urbane for indemnification. On lenges chal- dismissing the order its claim for contri- *3 bution from Urbane. We reverse.

Plaintiff Rowlf Hawkins himself while assisting prop- moving defendant Urbane in Urbane’s erty from Urbane’s residence. Urbane had earlier helped Hawkins and his fellow church members con- parochial response playground struct a at a school. In inquiry project, during alleg- to Hawkins’ Urbane edly help informed Hawkins that he would need mov- ing. waiting accident, On the date of the Hawkins was at Urbane’s house when Urbane returned home from work. Urbane had rented a truck from defendant Ryder appeal appellants The claim of named both and Atlas as even Ryder though being appealed only. the order from made reference to Indeed, appeal cross-complaint brought Ryder because this involves a only, appear standing appeal it would that Atlas lacks from the con Accordingly, appeal tested order. the issues raised in this will be treated by Ryder as if raised alone. App Opinion of the Court Ryder Trucking, doing Rental, business as Truck Atlas up moving. truck, As Urbane backed for use ramp glove caught while Hawkins his handle ramp attempting pull the from the rear of the up, pinning truck. Urbane continued to back Hawkins’ legs against the house. against

Hawkins commenced this action Urbane for Ryder against negligence Atlas and warranty. orally granted and breach of trial court summary disposition Urbane’s motion for under MCR 2.116(C)(10) doctrine, because under the volunteer Urbane owed Hawkins injure of care not to through him wilful or wanton acts. Before the any Ryder order, however, court entered written set- extinguishing Hawkins, tled with all Hawkins’ claims. Ryder then moved for leave to file cross-claims against Urbane for contribution indemnification. granted The trial court the motion and then immedi- ately Ryder’s dismissed claim for contribution on the ground regarding that its determination lia- Urbane’s bility injuries precluded Ryder’s for Hawkins’ likewise recovery subsequently for contribution.2 The court Ryder’s dismissed cross-claim defendant Urbane indemnification.

Ryder argues dismissing that the trial court erred in its contribution claim because the volunteer doctrine longer and, is no viable even if viable, does not workplace. ques- outside the This Court reviews this Lafayette tion of law de novo. In re Towers, 200 Mich may 269, 273; 503 NW2d 740 *4 2 During argument Ryder’s Ryder any regarding motion, oral waived summary defects notice and conceded that Urbane was entitled to dis position prior ruling regard based on the trial on court’s Urbane’s motion ing Hawkins’ claim.

Opinion of the Court only joint recover contribution from a tortfeasor. MCL 600.2925a(3); 27A.2925(1)(3); MSA vMiller Riverwood Center, Inc, 561, 564; Recreation 215 Mich (1996). joint NW2d 684 Whether Urbane was a hinges tortfeasor in this case on what of care he Hawkins, because claims Urbane’s negligence, actions constituted mere not wilful or Dalman, wanton conduct. Cf. Clark v 379 Mich 251, (1967). 260; 150 NW2d 755 The volunteer doctrine, as described Diefenbach Co, v Great Atlantic & Tea 280 Mich 507, 512- Pacific (1937), purely 513; 273 NW 783 is a limitation on respondeat superior liability.Under the volunteer doc- ordinary negligence trine, a master is not liable for person having his servant who has a third concurring colleague status of a volunteer. Our would extend the volunteer doctrine to insulate from tort liability any person directly negligence liable for Nothing suggests toward a volunteer. in Diefenbach against this result. itself was a suit Company, any the A & P of its servants, agents, employees. or

Here, we are asked to address prior Urbane, who asked Hawkins to return a favor by volunteering Accordingly, his services. Hawkins properly regarded having as the status of a volunteer under the test established in Gibson, Pace v part 315, 319; 98 NW2d 654 overruled in Felgner ground another v Anderson, present purposes, For in the context of a motion summary disposition, neg- for ligently we assume that Urbane Hawkins,

harmed but that his was being and did not rise to the level of wilful *5 App 228 Mich Opinion of the Court should why Urbane appears No reason or wanton. simply behavior liability for his tortious escape direct ordinary care was confined to his because many recog times Indeed, this Court has lessness. normally have the that a volunteer who would nized can become merely a social guest (licensee) status of premises of purposes guest (invitee) a business any or service of benefit to liability performing if act App 127, 131; 41 Mich invitor, Leveque Leveque, v Combs, v 135 Mich (1972); 199 NW2d 675 Doran White v Badala 492, 494-496; (1984); 354 NW2d 804 App 434, 436-437; 505 NW2d 8 menti, 200 recog Court has likewise (1993), and the principle mentioning anything nized this without doctrine. Kreski v Modern Whole about the volunteer 359; 415 NW2d Supply Co, sale Electric analysis by noting that, according is buttressed This pp 560-565, volun- Torts, 2d, 496A, to Restatement assumption teer status is relevant in terms of jurisprudence limits invo- However, Michigan the risk. assumption of the risk doctrine to the cation of the in terms of vicarious lia- context, master and servant bility. Thus, it would be a Feigner, supra 39, 45, at 56. doctrine to invoke misinterpretation of the volunteer liability purpose insulating it for the duty. personal for his own tortious breach of applies only with The notion that Diefenbach liability supported respect respondeat superior Haanpaa, App 303, 309; Chamberlain which discusses the volunteer exclusively it in the vicari- though doctrine as liability The volunteer doctrine is simi- ous context. respondeat supe- larly exclusively in terms of treated Opinion op the Court liability rior of the rather than master, direct of a negligent servant, Duty proprietor anno: upon premises private toward visitor business with or errand employee, or work 94 ALR2d 6, 15, n (1964). Additionally, was read no broadly more than and within this, this context con- siderably narrowed, in Pace, supra.

There are few doctrines, common-law if any, that immunize negligent generally, par- actors or even in *6 classes, liability ticular for their own tortious conduct. Such common-law doctrines as ever did jurisprudence exist in Michigan gone way have the of dodo, and great auk, the dinosaur. Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1 (1961), abol- governmental ished common-law immunity, thereby “righting an age-old wrong.” Montgomery v Stephan, 33, 359 Mich 38; NW2d 227 overruled (1960), cen- turies of tort jurisprudence precluded a wife from suing for loss of consortium of her husband, that the old law opining reproach case stood as “a law and alike,” conscience and could not remain if the court were to fulfill its oath justice, “to do not to perpetuate error.” The common-law immunities that supported by remain3 are all compelling public policy American Arbitration Martin v Children’s Aid immunity comitatus islators to be free from civil eral v Regina Secretary (1832); Ct (1996), Conditioning Corp, bria Police 286; These immunities include: Firestone v and Wayne 116 Ed 2d 9 for those (“power Authority, nonjudicial adjudicators L Circuit Rice, conscripted 362 Mich 71 Mich ^[1988] Ass’n, (1991), Judge, Society, county”), process, 1 All State judicial, 205 Mich 377; and 692, 695; into Eng for 215 Mich 38 NW 885 quasi-judicial Rex v public Const Mireles v the Home Rep 556, mediators, App 149; 108 NW2d 761 Pinney, service App 88, 96; (1888); 208 NW 696 aff Waco, Dep’t art immunity 'g Sanders v Leeson Air pursuant ^[1987] 502 US ex Eng Rep 349, (1961); parte privilege 544 NW2d 651 for 2 All Auditor Gen to the 9, 11; witnesses, Northum Boraks v Eng Rep (1994); posse 112 S leg by Corrigan, C.J. opinion nor the rationales. Neither the Diefenbach provides any present concurring opinion in the case support precedential the volun- for the extension of beyond the vicarious context. teer doctrine private citizens immune for their own Nowhere are concerned, tortious acts. The common law has been persons expanding the universe of who rather, with may tort, be held liable in and the volunteer doctrine liability. fits within that context as a limit on vicarious it To distort immunity and hold that establishes personal directly perpetrated negligence jurisprudence wholly idiosyn- carves out of our tort reign, cratic niche wherein has free principled public policy justification, which no nor support proposed law, textual in the has been or advanced.

Reversed. concurred.

Doctoroff, J., (concurring result). I concur in Corrigan, majority’s sepa- decision to but reverse, write rately majority’s disagree because I with the reason- majority ing. agree I do not with the that the volun- *7 respondeat superior teer doctrine is limited to liabil- ity. would, however, I hold that in the trial court erred granting summary disposition question because a fact exists whether the volunteer doctrine in this case. “speech immunity, Gagliardi, App 260, or debate” Wilkins v 219 Mich 269- 270; (1996); Nelson, Supp (WD 556 NW2d 171 United States v 486 F Mich, 1980), legislative bodies, which extends to members of local

Frohling Carpenter, App 368; (1993); 512 NW2d 6 and the sim- military privilege officers, ilar official communications and naval Schultz, App 292; Couch v 483 NW2d 684 by Corrigan, majority holds the volunteer doctrine does in this case because as doctrine, in v Great &

described Atlantic Diefenbach Pacific Mich Co, (1937), Tea NW 783 is a limita- purely respondeat superior liability. tion I do not volunteer agree that the doctrine is so limited. Our Court stated in Pace v Gibson, 315, 319-320; that it recog- general nized “the rule that one iswho merely a volunteer in rendering services to another cannot recover if because of negligence, there duty being injure by other than not to him willful description or wanton act.” The Court’s of the doc- trine is consistent with that of other general authori- CJS, Negligence, p ties. 65 63(148), § states: person engaged work, occupier A or the owner or duty land, owes no to exercise care toward a mere volunteer, gross negligence, and is liable willful- ness, or wantonness. 2d, Employment

27 Am Jur Relationship, 282, p similarly describes the volunteer doctrine as follows: required by employer respect

The duties law of an with employees generally to its employer are not owed person employer a whom the has not authorized to render employee. particular, services as an In a who of his own volition volunteers to do work for another without that person’s knowledge generally cannot recover for breach of duty employer employee. to an The foregoing authorities demonstrate that the vol- unteer doctrine sets forth the of care that a “Duty master owes a volunteer. essentially ques- tion of whether the relationship between the actor injured person gives any and the rise to legal obliga- *8 by Corrigan,

Concurrence C.J. part for benefit of the tion on the actor’s person.” Moning 425, 438-439; Alfono, added). arising (1977) (emphasis NW2d The relationship and volunteer is not out of the master specific liability. Therefore, limited to a form of liability doctrine whether the master’s arises from his own act or that of servant. majority additionally contends that the Restate Michigan regarding Torts, 2d,

ment case law assumption support of risk its assertion that the vol limited unteer doctrine is to vicarious in the Contrary majority’s master and servant context. to the assertion, however, Torts, 2d, 496A, Restatement pp per 560-565, se, does not discuss volunteers it merely discusses situations where someone “volunta rily” Felgner assumes a risk. In v Anderson, 375 Mich 39, 45, 56; also cited majority, prior in the Court noted that cases it had applied assumption the doctrine of of risk in con relationships text of master and servant to limit the employer’s liability consequences for the of another’s (a servant’s) language act. The Court cited in Pace, supra, example uncertainty as an of a case where language exists in how the Court used of assumed Felgner, supra supra risk. Pace, at 51. In at Court stated: presented

Under the circumstances here it cannot be said plaintiff as a of law matter was a mere volunteer. He not, consequence, injured by being did assume the risk of ordinary negligence part on the of defendant or his employee, may contributory charged negli- not be with gence on such basis. assumption

Our Court’s use of of risk lan- contrary guage Pace, however, to the rationale by Corrigan, Diefenbach, as set forth in the volunteer doctrine for supra. *9 supra, the Court neither discussed Diefenbach, In assumption underlying as the rationale for the of risk respon- nor limited the doctrine to volunteer doctrine liability. rejected superior The Court alternate deat explaining doctrine, volunteer rationales for the appear to be that the volun- the “better view would duty him teer cannot recover because owed to injure by him wilful other than not to or wanton quoted expensively acts.” Id. at 512. The Court then WP R West, from Atlanta & Co v Ga 49 SE The West court reasoned that volunteer degree diligence is not entitled to the same of on the part is bound of the master as master to exercise to servants because a volunteer is with reference prior a servant. The West court noted that in cases injuries by involving servants, inflicted fellow courts equated a volunteer with a servant because a volun- position stand in no than a servant, teer could better injuries who could not recover from the master for by court, however, caused a fellow servant. The West explained Legislature further that when the has abro- gated nonliability, the rule of volunteers must be assigned positions obligations their true and the master and servant do not arise between them. Die- supra (quoting supra). West, at 512-513 fenbach, relationship Given the focus on the between the identity negli- volunteer, master and the not the simply gent actor, Court’s rationale support limiting does not the volunteer doctrine to superior liability. respondeat majority’s contrary Further, assertion, to the adopted by doctrine, as the Court in Die- volunteer App by Corrigan, liability any per does not “insulate from fenbach, tort directly son liable for toward a volunteer.” Ante at 523. The volunteer doctrine does not alleg volunteer’s claim a master’s edly negligent servant because the doctrine estab duty by a lishes the owed master to a volunteer, not duty the master’s servant to a volunteer. Georgia Express, Hwy Inc Rountree, 130 Ga (1974). Regarding 792, 794; 204 SE2d 512 the master’s negligence, clearly provides however, the doctrine that the master owes the volunteer injure care not to him wilful or wanton acts. Die supra fenbach, at 512-513. majority contrary

In the end, the acts to both our underlying Court’s written word and ratio- *10 limiting holding nale in the Court’s in Diefenbach, supra, respondeat superior liability. to This Court has authority no to take such action because a decision of Supreme binding our Court is on this Court until the Supreme Court overturns it. O’Dessv Grand Trunk W R Co,

Whether the volunteer doctrine should be limited in Michigan respondeat superior liability, to otherwise altogether, questions modified, or abandoned are properly addressed to our Court. Absent by later decisions the Court that call into doubt the holding, may breadth of this Court Diefenbach’s holding, limit that but rather, must it as written by until further consideration of the issue our Supreme Court. majority’s

I nonetheless concur in the decision to question reverse because a of fact exists whether the volunteer doctrine in this case. In order for apply, the volunteer doctrine to the master must not Rental v Urbane Truck by Corrigan, C.J. the volunteer to render services. have authorized not have otherwise, the master must invited Stated CJS, Negligence, volunteer to render services. the is in work pp (“One engaged 935-936 who 63(148), § who to operation owes to another undertakes or an volunteer, him as a mere without invitation assist relationship, duty of contractual care and without may . . duty to exercise care exist. because .... [A] requested to act”) (empha- is invited or such 2d, Employment Relationship, Am Jur added); sis person who his own volition vol- 282, p 772 (“[A] person’s to work for another without unteers do knowledge cannot recover for breach of a generally employee.”) (empha- to an by employer at West, supra, added). passage sis supra at like- Diefenbach, Court in quoted the distinction: wise makes this any employment at whatever or without who, One authority employ request has no other a servant who servants, voluntarily perform service undertakes to degree master, mere volunteer and not entitled to that is a diligence part latter of the master which the [Emphasis reference his servants. bound exercise with added.] same result where the courts have reached the

Other injured person labeling act master invites “gratui- servant” or injured person “gratuitous employee,” rather than volunteer.1 See Milbank tous *11 1 Nerby, 252, example (ND, 1960), of v NW2d 256 is an Severinson 105 may apply doctrine even the court the volunteer where circumstances presence in because the renders services the master’s when the volunteer Severinson, In the defendant invite the volunteer act. master did not plaintiffs independent the who contracted with contractor was plaintiff building. employer a a for concrete foundation construct employer job his to furnish water defend- on behalf of was at the site 532 519 by Corrigan, Dairyland, Co, Mut Ins Co v Ins 373 893 NW2d v (ND, 1985); Peterson, Murdock Nev (1958). P2d 649

In Pace, both the master’s servant help allegedly injured person solicited the of the or injured person invited the to act. The master did not acquiesce in arrangement grant the or the servant the authority injured engage person. the services the Compare Kavigian Lonero, 312 Mass 45 NE2d both Accordingly, cases turned injured person fact, whether the in a was, volunteer. injured In the Court Pace, person held was not a volunteer because he had an interest in the work. v Kemp, See also Fletcher 327 SW2d 1959); Rountree, supra (Mo, By contrast, at 794. master in (Urbane) allegedly the instant case invited the volunteer If (Hawkins) act. Urbane did invite to act, Hawkins the volunteer doctrine would not apply, irrespective of whether Hawkins would other wise be classified as a volunteer. plaintiff ant’s cement mixer under the contract. The defendant if asked grease gun, grease had a he because the defendant needed to his cement plaintiff and, grease gun prompting mixer. The retrieved without defendant, greased performing the mixer and himself plaintiff gratuitous task. The court held that the was a volunteer and not a employee expressly implicitly request because the did defendant or help. his equivalent The invitation-to-act element is not the of invitee status. I agree with the trial court that Hawkins be would classified as a volunteer person’s if the volunteer doctrine in this A case. status as a volun teer turns on whether he has an interest in the work. Chamberlain v Haanpaa, App 303, 309; (1965). person regular A pursuit purpose of his own business is anot volunteer for of the volunteer reject Ryder’s argument doctrine. id. See at 309-310. I that an informal exchange gratuitous social rendering of assistance satisfies the interest test. This past of services in return does favor not establish an inter in the est work sufficient to create an issue fact whether a is a doctrine, however, volunteer. The volunteer is founded on the notion that care arises between a master and a volunteer because *12 533 v Urbane Truck Rental by Corrigan, C.J. why this explains element also The mvitation-to-act the volunteer doctrine did consider the Court not 41 Leveque, majority Leveque v by the cases cited — and Doran 199 675 App 131; (1972), NW2d 127, Mich NW2d 804 App 492, 494-496; 354 Combs, 135 Mich v 3 or cases, the master authorized In those As perform to services. the invited doc demonstrate, the volunteer Leveque Doran such settings, not in social generally does trine because assistance, rendering neighborly the as involve a master who authorizes typically cases those to act. or invites the volunteer case, of fact existed question In the instant to requested invited Hawkins whether Urbane or possessions. his If the moving personal him assist Haw- apply, does Urbane owed volunteer doctrine not up while the duty backing kins a care Mich Trucking Co, v 368 McCullough truck. Ward Mich 108; Hopkins Lake, 348 (1962); Bentley, NW2d Jenkins v 398; (1957); 262 NW the (1936). Accordingly, summary disposition court in granting trial erred Urbane, question of fact existed whether because the doctrine in this case. volunteer something employment agreed enter akin the master never into volunteer, relationship i.e., did invite the volun- the master with act, gratui- to act. master invites the volunteer whether teer When the tously not, application not further this or volunteer doctrine would underlying rationale. majority, Badalamenti, White v In another cited case injuries sued the volunteer for NW2d 8 master slipped walking side on the volunteer’s sustained when she fell while arguably apply Thus, because did not even walk. the volunteer doctrine did a master a volunteer. the case not involve