PERMELIA WILTFONG V KEVIN LEE GILKESAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PERMELIA WILTFONG and ROGER
WILTFONG, Individually and as Personal
Representatives of the Estates of ROBERT LEE
WILTFONG and WANDA LOMA EATON,
June 9, 1998
Genesee Circuit Court
LC No. 96-046390 NI
KEVIN LEE GILKES,
Before: Wahls, P.J., and Jansen and Gage, JJ.
Plaintiffs appeal as of right the circuit court’s order granting summary disposition to defendant
pursuant to MCR 2.116(C)(10). We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Permelia Wiltfong was seriously injured, and Robert Wiltfong and Wanda Loma Eaton were
killed when a vehicle in which defendant was a passenger crossed the center line of M-115 and struck
their vehicle head on. Plaintiffs settled their claims against the driver and owner of the vehicle defendant
was occupying. This action sought to hold defendant liable on a joint enterprise theory. The trial court
granted defendant’s motion for summary disposition, finding that plaintiffs failed to establish a common
right of control and that the joint enterprise theory was inapplicable in the instant factual situation.
To constitute a joint enterprise between a passenger and a driver of an
automobile within the meaning of the law of negligence, there must be a community of
interest in the use of the vehicle; there must be a finding of common responsibility for its
negligent operation; and it must be found that the driver is acting as an agent of the other
members of the enterprise. [Boyd v McKeever, 384 Mich 501, 508-509; 185 NW2d
This Court has found that the joint enterprise theory is still viable as applied to automobile
negligence cases in Michigan. Troutman v Ollis, 164 Mich App 727, 732; 417 NW2d 589 (1987).
The trial court did not err in finding that plaintiffs failed to establish the three parts of a joint
enterprise claim. There was some community of interest between the driver, the owner of the vehicle
and defendant, as they were on a fishing trip together. However, there was no evidence that defendant
shared common responsibility for the negligent operation of the vehicle, or that the driver was acting as
his agent. Sherman v Korff, 353 Mich 387, 395; 91 NW2d 485 (1958). The three men did not share
expenses, and there was no showing that defendant had any ability to exercise authority over who
would drive the vehicle or how it would be driven. Under the circumstances, the trial court properly
granted summary disposition to defendant.
Affirmed. The stay ordered by this Court is dissolved.
/s/ Myron H. Wahls
/s/ Kathleen Jansen
/s/ Hilda R. Gage