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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
DAVID A. JAMES,
Plaintiff-Appellee,
v ROY ALBERTS,
Defendant-Appellant.
____________________________________ BEFORE THE ENTIRE BENCH
TAYLOR, J.


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

____________________________________________________________________________________________________________________________

FILED MAY 15, 2001


No.

114454


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
James


about 40 feet long, 10 inches wide and 18 inches deep.

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
However, James did not see a


over a partially buried cable. 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. (1999). 234 Mich App 417; 594 NW2d 848


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
The judges


that it believed that Ryder was wrongly decided.)

of the Court of Appeals were polled and a majority declined to
convene a special panel. (1999). (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
234 Mich App 801; 600 NW2d 704
461 Mich 1009


This Court granted leave to appeal.

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,
Under this rule, if A had two
B negligently injured C while


32; 133 NW2d 136 (1965). employees, B and C, and

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


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. the stage for the abolition of the

This should have set
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


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.
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
The alleged


that he was injured by a condition of the land.

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
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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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