The Michigan Court of Appeals recently affirmed an order of the circuit court granting summary disposition in favor of a defendant club owner in a case involving a physical fight at the defendant’s strip club.
After a fight broke out between two of the club’s dancers, a bouncer became involved in the altercation, assisting in separating the combatants and bystanders. He worked at the club as a part-time bouncer but was present in the club as a patron at the time of the altercation. The plaintiff was performing as a dancer at the time and was a bystander to the altercation. She sustained an injury to her arm, which she alleged was caused by the bouncer when he seized her and pushed her into a doorway in the process of breaking up the fight. The plaintiff based her claim against the defendant club owner on a theory of vicarious liability for the bouncer’s conduct while he was acting within the scope of his employment with the defendant. She also alleged a claim involving negligent hiring and employment.
The trial court granted the defendant’s motion for summary disposition under MCR 2.116(C)(10) on the plaintiff’s vicarious liability claim on the grounds that (1) there was no genuine issue of material fact that the bouncer was not acting in the scope of employment at the time of the plaintiff’s injury, and (2) even if the bouncer were acting in the scope of employment, since the plaintiff’s theory against him was one of assault and battery, the defendant would not be vicariously liable for the intentional tort. The plaintiff appealed.
The essential question presented to the appeals court was whether the bouncer, who was not “on the clock” at the time of the incident, was acting in the scope and course of his employment when he allegedly caused the plaintiff’s injury.
In ruling for the defendant, the appeals court relied on a 1916 case in which a car being operated by the defendant’s employee struck a team of horses, resulting in the death of one of the horses. The question was whether the employee “was at the time in the service of the defendant.”
In that case, the driver, Mr. Greenamyer, worked for the defendant, inspecting vehicles being assembled for the defendant at Lewis Spring & Axle Co. When Greenamyer was done working for the day, he volunteered to drive a salesman to another of the defendant’s plants and then to the railroad station. He borrowed a vehicle from Lewis Spring & Axle, and, while transporting the salesman, the accident occurred. In its opinion, the Michigan Supreme Court noted the following:
“The testimony is undisputed that Greenamyer had finished his work for the day when he left the Lewis Spring & Axle Company plant with the car. There is no testimony tending to prove that he was employed by the Briscoe Motor Company to drive this machine, at this time, or to carry a passenger for his employer, or for any one else. His trip was for the accommodation of the salesman who rode with him, or for his own pleasure, or both.”
The court rejected the plaintiff’s attempt to invoke the rule that the employer is responsible for its servant’s conduct, stating that it “would be an invasion of the rule, and a false application of it, if it was held that a servant may, at any time, volunteer to borrow a car and carry a passenger, or for his own use drive it, at his master’s risk.”
The appeals court held that the same principle applies to the present case. The bouncer was in the club on his own time and volunteered to come to the aid of his fellow bouncers. The appeals court qualified that it might be inclined to decide differently had the manager requested or demanded that the bouncer do so. But there was no evidence of that. Accordingly, it concluded, the trial court properly granted summary disposition in the defendant’s favor.
The premises liability attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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