Ryder Truck Rental, Inc v. Urbane , 228 Mich. App. 519 ( 1998 )

Fitzgerald, J.

Defendants Ryder Truck Rental, Inc., and Atlas Trucking, Inc.,¹ appeal as of right the order dismissing Ryder’s cross-claim against defendant Urbane for indemnification. On appeal, Ryder challenges only the order dismissing its claim for contribution from Urbane. We reverse.

Plaintiff Rowlf Hawkins injured himself while assisting defendant Urbane in moving Urbane’s property from Urbane’s residence. Urbane had earlier helped Hawkins and his fellow church members construct a playground at a parochial school. In response to Hawkins’ inquiry during the project, Urbane allegedly informed Hawkins that he would need help moving. On the date of the accident, Hawkins was waiting at Urbane’s house when Urbane returned home from work. Urbane had rented a truck from defendant Atlas Trucking, doing business as Ryder Truck Rental, for use in moving. As Urbane backed up the truck, Hawkins caught his glove on a ramp handle while attempting to pull the ramp from the rear of the truck. Urbane continued to back up, pinning Hawkins’ legs against the house.

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

Ryder argues that the trial court erred in dismissing its contribution claim because the volunteer doctrine is no longer viable and, even if viable, does not apply outside the workplace. This Court reviews this question of law de novo. In re Lafayette Towers, 200 Mich App 269, 273; 503 NW2d 740 (1993). Ryder may recover contribution only from a joint tortfeasor. MCL 600.2925a(3); MSA 27A.2925(1)(3); Miller v Riverwood Recreation Center, Inc, 215 Mich App 561, 564; 546 NW2d 684 (1996). Whether Urbane was a joint tortfeasor in this case hinges on what duty of care he owed Hawkins, because Ryder claims that Urbane’s actions constituted mere negligence, not wilful or wanton conduct. Cf. Clark v Dalman, 379 Mich 251, 260; 150 NW2d 755 (1967).

The volunteer doctrine, as described in Diefenbach v Great Atlantic & Pacific Tea Co, 280 Mich 507, 512-513; 273 NW 783 (1937), 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. Our concurring colleague would extend the volunteer doctrine to insulate from tort liability any person directly liable for negligence toward a volunteer. Nothing in Diefenbach suggests this result. Diefenbach itself was a suit against only the A & P Company, not against any of its servants, agents, or employees.

Here, we are asked to address the liability of Urbane, who asked Hawkins to return a prior favor by volunteering his services. Accordingly, Hawkins is properly regarded as having the status of a volunteer under the test established in Pace v Gibson, 357 Mich 315, 319; 98 NW2d 654 (1959), overruled in part on another ground Felgner v Anderson, 375 Mich 23, 56; 133 NW2d 136 (1965).

For present purposes, in the context of a motion for summary disposition, we assume that Urbane negligently harmed Hawkins, but that his negligence was ordinary and did not rise to the level of being wilful or wanton. No reason appears why Urbane should escape direct liability for his tortious behavior simply because his negligence was confined to ordinary carelessness. Indeed, this Court has many times recognized that a volunteer who would normally have the status of merely a social guest (licensee) can become a business guest (invitee) for purposes of premises liability if performing any act or service of benefit to the invitor, Leveque v Leveque, 41 Mich App 127, 131; 199 NW2d 675 (1972); Doran v Combs, 135 Mich App 492, 494-496; 354 NW2d 804 (1984); White v Badalamenti, 200 Mich App 434, 436-437; 505 NW2d 8 (1993), and the Supreme Court has likewise recognized this principle without mentioning anything about the volunteer doctrine. Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347, 359; 415 NW2d 178 (1987).

This analysis is buttressed by noting that, according to 2 Restatement Torts, 2d, § 496A, pp 560-565, volunteer status is relevant only in terms of assumption of the risk. However, Michigan jurisprudence limits invocation of the assumption of the risk doctrine to the master and servant context, in terms of vicarious liability. Feigner, supra at 39, 45, 56. Thus, it would be a misinterpretation of the volunteer doctrine to invoke it for the purpose of insulating a person from liability for his own personal tortious breach of duty.

The notion that Diefenbach applies only with respect to respondeat superior liability is supported by Chamberlain v Haanpaa, 1 Mich App 303, 309; 136 NW2d 32 (1965), which discusses the volunteer doctrine as though it applies exclusively in the vicarious liability context. The volunteer doctrine is similarly treated exclusively in terms of respondeat superior liability of the master, rather than direct liability of a negligent servant, in anno: Duty of proprietor toward visitor upon premises on private business with or errand or work for employee, 94 ALR2d 6, 15, n 10 (1964). Additionally, Diefenbach was read no more broadly than this, and within this context considerably narrowed, in Pace, supra.

There are few common-law doctrines, if any, that immunize negligent actors generally, or even in particular classes, from liability for their own tortious conduct. Such common-law doctrines as ever did exist in Michigan jurisprudence have gone the way of the dodo, the great auk, and the dinosaur. Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1 (1961), abolished common-law governmental immunity, thereby “righting an age-old wrong.” Montgomery v Stephan, 359 Mich 33, 38; 101 NW2d 227 (1960), overruled centuries of tort jurisprudence that precluded a wife from suing for loss of consortium of her husband, opining that the old case law stood as “a reproach to law and conscience alike,” and could not remain if the court were to fulfill its oath “to do justice, not to perpetuate error.” The common-law immunities that remain³ are all supported by compelling public policy rationales. Neither the Diefenbach opinion nor the concurring opinion in the present case provides any precedential support for the extension of the volunteer doctrine beyond the vicarious liability context.

Nowhere are private citizens immune for their own tortious acts. The common law has been concerned, rather, with expanding the universe of persons who may be held liable in tort, and the volunteer doctrine fits within that context as a limit on vicarious liability. To distort Diefenbach and hold that it establishes immunity for personal negligence directly perpetrated carves out of our tort jurisprudence a wholly idiosyncratic niche wherein negligence has free reign, for which no principled public policy justification, nor textual support in the law, has been proposed or advanced.

Reversed.

Doctoroff, J., concurred.

1 The claim of appeal named both Ryder and Atlas as appellants even though the order being appealed from made reference to Ryder only. Indeed, because this appeal involves a cross-complaint brought by Ryder only, it would appear that Atlas lacks standing to appeal from the contested order. Accordingly, the issues raised in this appeal will be treated as if raised by Ryder alone.

2 During oral argument regarding Ryder’s motion, Ryder waived any defects in notice and conceded that Urbane was entitled to summary disposition based on the trial court’s prior ruling on Urbane’s motion regarding Hawkins’ claim.

3 These immunities include: judicial, Mireles v Waco, 502 US 9, 11; 112 S Ct 286; 116 L Ed 2d 9 (1991), and quasi-judicial immunity for witnesses, Martin v Children’s Aid Society, 215 Mich App 88, 96; 544 NW2d 651 (1996), and nonjudicial adjudicators and mediators, Sanders v Leeson Air Conditioning Corp, 362 Mich 692, 695; 108 NW2d 761 (1961); Boraks v American Arbitration Ass’n, 205 Mich App 149; 517 NW2d 771 (1994); immunity for those conscripted into public service pursuant to the posse comitatus (“power of the county”), Rex v Pinney, 110 Eng Rep 349, 355 (1832); Regina v Secretary of State for the Home Dep’t ex parte Northumbria Police Authority, [1988] 1 All Eng Rep 556, aff'g [1987] 2 All Eng Rep 282, Firestone v Rice, 71 Mich 377; 38 NW 885 (1888); the privilege of legislators to be free from civil process, Const 1963, art 4, § 11; Auditor General v Wayne Circuit Judge, 234 Mich 540; 208 NW 696 (1926), and “speech or debate” immunity, Wilkins v Gagliardi, 219 Mich App 260, 269-270; 556 NW2d 171 (1996); United States v Nelson, 486 F Supp 464 (WD Mich, 1980), which extends to members of local legislative bodies, Frohling v Carpenter, 203 Mich App 368; 512 NW2d 6 (1993); and the similar official communications privilege for military and naval officers, Couch v Schultz, 193 Mich App 292; 483 NW2d 684 (1992).