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04/27/76 WITUCKE v. PRESQUE ISLE BANK

April 27, 1976

WITUCKE
v.
PRESQUE ISLE BANK



Appeal from Oakland, William John Beer, J.

Leave to appeal denied, 397 Mich 842.

McGregor, P. J., and Bashara and Allen, JJ.

SYLLABUS BY THE COURT

1. Motions -- Accelerated Judgment -- Summary Judgment -- Mislabeling -- Release -- Court Rules.

A defendant's motion that a claim is barred because of a release given by a plaintiff to certain other defendants is properly labeled as a motion for accelerated judgment and not as a motion for summary judgment; however, the mislabeling of such a motion will not prevent the Court of Appeals from consideration of questions raised by the motion, particularly in the absence of an objection to the mislabeling (GCR 1963, 116.1[5]; 117.2[3]).

2. Release -- Joint Tortfeasors -- Independent Concurrently Negligent Tortfeasors -- Statutes.

A release of one joint tortfeasor does not release other joint tortfeasors; the application of the release doctrine does not apply to independent concurrently negligent tortfeasors (MCLA 600.2925; MSA 27A.2925).

3. Release -- Tortfeasors -- Discharges -- Primary Liabilities -- Secondary Liabilities -- Respondeat Superior -- Master and Servant.

A releasor's acceptance of satisfaction from one tortfeasor discharges any other tortfeasor as well in a situation where several persons are not actively joint tortfeasors, but one person commits the tort and is primarily liable while the liability of the other person is derivative or secondary, as where it arises under the doctrine of respondeat superior; this rule is inapplicable where the master, in a master and servant relationship, is guilty of some independent or Concurring act of negligence.

4. Master and Servant -- Negligence -- Inherently Dangerous Activities -- Principal and Agent -- Non-delegable Duties.

An essential element of the "inherently dangerous" doctrine is the failure of a principal to see that all appropriate precautions are taken by the one to perform the inherently dangerous task for the principal; there is a non-delegable duty for the principal to see that any work done by a contractor or agent is done with the requisite degree of care and when the contractor or agent fails in fulfilling its duty of care, the principal has breached its own precautionary duty.

5. Release -- Negligence -- Inherently Dangerous Activities -- Principal and Agent -- Independent Contractors.

The release of an independent contractor would not release a principal from liability in an action alleging an "inherently dangerous" theory of liability because such a theory requires the principal's own negligence.

6. Negligence -- Inherently Dangerous Activities -- Jury -- Question of Fact.

The determination of whether an activity is inherently dangerous is a question of fact for the jury.

7. Release -- Negligence -- Motions -- Summary Judgment -- Theories of Liability -- Joint Venture -- Res Ipsa Loquitur.

A defendant's motion for summary judgment on the basis that a release given to a joint tortfeasor served as a release of the defendant also was properly denied where the plaintiff was proceeding on a joint venture theory of liability and a res ipsa loquitur theory and both theories require that the defendant be independently or concurrently negligent.

8. Negligence -- Question of Fact -- Directed Verdict.

Negligence is a question of fact and not of law; therefore, the entry of a directed verdict based on the lower court's determination that a defendant was liable as a matter of law was improper where the Court of Appeals is convinced by an examination of the record that reasonable men could differ concerning the defendant's negligence under any of a plaintiff's theories of liability for negligence.

9. Contribution -- Cross Claim -- Severance -- Prejudice to Plaintiffs -- Negligence -- Proof of Negligence.

A defendant's cross claim against a third party for contribution should not be severed from the main trial where the issue of contribution will be very much alive if the defendant is found to be liable under any of a plaintiff's theories and where the plaintiff will not be prejudiced if the defendant is allowed to introduce proofs of the third party's negligence and where plaintiff must show the ...


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