Summary
In Cole v. Sears Roebuck & Co., 47 Wis.2d 629, 177 N.W.2d 866 (1970), the Wisconsin Court concluded that supervision of a child's play does not involve "an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services and other care."
Summary of this case from Bell v. SchwartzOpinion
No. 318.
Argued June 3, 1970. —
Decided June 26, 1970.
APPEAL from an order of the circuit court for Waukesha county: WILLIAM E. GRAMLING, Circuit Judge. Affirmed.
For the appellants John W. and Elayne Cole there was a brief by Schellinger Doyle and Stanley F. Schellinger, all of Milwaukee, and oral argument by Stanley F. Schellinger.
For the respondents Ronald B. and Karen Willer there was a brief by Hayes Hayes and Hanlin J. Hayes, all of Milwaukee, and oral argument by Hanlin J. Hayes.
This is an appeal from an order overruling demurrers to a counterclaim and third-party complaint.
The complaint alleges that Jeffrey Cole, a minor born on May 21, 1965, was injured on September 24, 1967, while on the premises of defendants and third-party respondents, Ronald B. Willer and Karen Willer, at N 92, W 17320 Forest Drive, Menomonee Falls, Wisconsin. Jeffrey lived with his parents, plaintiff-appellant, John W. Cole, and third-party defendant-appellant, Elayne Cole. The complaint alleges that Jeffrey played at frequent intervals with the Willer's children in the Willer's backyard, wherein there was a swing set purchased by Ronald Willer from defendant, Sears, Roebuck Company; and that the swing set consisted of two swings and two gliders. In paragraph five of the complaint, it is alleged:
". . . that one of the said gliders was equipped with flooring and was so designed and manufactured so as to cause an extension of tubing to protrude several inches further than the backseat and rest of the glider on each such chair and on either side of said glider; that such protruding tubing was not equipped or designed with any protective device; that such protruding tubing was curved in an outward and upward angle and style which upon the forward motion of the glider did constitute an unreasonable and unnecessary danger to persons or objects within the vicinity of such swing set."
Paragraph six of the complaint alleges:
"That said swing set was inherently dangerous to users and observers of such device in its original design and manufacture; that, on information and belief, such protruding tubing previously described was at its respective ends open, hollow without protective covering of any kind at its sharp end points; that the corporate defendant at the time of sale knew, or should have known, in the ordinary course of its business, that the aforedescribed swing set would be for the primary use of children of tender age and constituted an unreasonable danger."
Jeffrey was struck in and about his right eye by the alleged unprotected tubular extension of said swing set.
The defendants-respondents, Mr. and Mrs. Willer, impleaded Jeffrey's mother, Elayne Cole, and filed a third-party complaint against her and a counterclaim against the father, John W. Cole, for contribution. Both the counterclaim and the third-party complaint allege the following items of negligence:
"(a). . . failed to exercise ordinary care to protect . . ., minor plaintiff, Jeffrey Cole, from known or anticipated danger;
"(b) . . . negligently and carelessly allowed the minor plaintiff to be placed in a position of danger;
"(c) . . . permitted the minor plaintiff to play in an area containing a swing set which he [she] knew or should have known could cause danger and injury to him;
"(d) . . . failed to supervise or to provide for proper supervision of the minor plaintiff."
The parents-appellants filed demurrers to the third-party complaint and counterclaim.
In Goller v. White (1963), 20 Wis.2d 402, 413, 122 N.W.2d 193, this court abrogated parental immunity except in two situations:
". . . (1) Where the alleged negligent act involves an exercise of parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. Accordingly, the rule is abolished in personal-injury actions subject to these noted exceptions. . . ."
Appellants argue that control of play activity of a young child is a parental function which constitutes an exercise of parental discretion with respect to "other care" as that term was used in Goller v. White, supra, and therefore the trial court should have upheld their demurrer to the counterclaim and third-party complaint.
This court, in Lemmen v. Servais (1968), 39 Wis.2d 75, 158 N.W.2d 341, held that parents who failed to properly instruct a six-year-old child in how to leave a school bus and cross a highway were exercising ordinary parental discretion with respect to "other care" of their child. In that case language was used which appellants now point to in arguing that their alleged negligence (supervision of the play of a young child) is a familial obligation — as distinct from a general obligation — and is, therefore, an area protected by parental immunity.
". . . The two exceptions enunciated in Goller recognize that within the framework of parental authority and discretion, parents must be accorded immunity from litigation which in fact would disrupt family harmony and unity. The immunity is limited to transactions which are essentially parental. Dunlap v. Dunlap (1930), 84 N.H. 352, 150 A. 905.
"A new and heavy burden would be added to the responsibility and privilege of parenthood, if within the wide scope of daily experiences common to the upbringing of children a parent could be subjected to a suit for damages for each failure to exercise care and judgment commensurate with the risk. Such is not the rule of Goller." Lemmen v. Servais, supra, pages 79, 80.
Appellants assert that a parent's supervision of a child's play is an activity entitled to immunity because it involves direct parental control and is primarily an interaction between parent and child rather than a nondomestic activity. However, parental immunity is not determined by whether the negligence arises out of an "essentially parental" act involving parental control and this is not the standard this court set forth in Goller.
Granting immunity to a parent solely because the negligence complained of arose out of a familial obligation would give immunity the same breadth and scope as in those jurisdictions which carved out another exception to the rule of immunity premised on whether the negligent act was an activity intimately associated with the parent-child relationship. However, this approach was considered in Golfer and rejected when the rule of parental immunity was abolished in personal injury actions subject to the two noted exceptions. In rejecting the rationale in cases such as Borst v. Borst, supra, Goller limited immunity to a greater degree than simply acts which are "essentially parental" in nature. To qualify for the exception to liability in this state, the act must not only be parental in nature but it must also constitute an exercise of discretion with "respect to the provision of food, clothing, housing, medical and dental services, and other care." Golfer v. White, supra. The term "other care" is not so broad as to cover all acts intimately associated with the parent-child relationship.
"The courts of Ohio and Washington have held that the parental-immunity rule does not apply if the parent was engaged in his business or occupation at the time he committed the negligent act. Signs v. Signs (1952), 156 Ohio St. 566, 103 N.E.2d 743, and Borst v. Borst (1952), 41 Wn.2d 642, 251 P.2d 149." Goller v. White, supra, p. 411.
In Lemmen this court held that other care included an act dealing with a child's education. This was premised on the parent's legal obligation to ensure their child's basic education, and parental immunity from negligence was viewed as a means of enabling a parent to discharge this duty.
"`"The legal obligations of parenthood include the duties of support, of care and protection, and of education." 39 Am. Jur., Parent and Child, p. 593, sec. 6. . . .'
". . . The immunity granted by these two exceptions is accorded the parent, not because he is a parent, but because as a parent he pursues a course within the family constellation which society exacts of him and which is beneficial to the state. The parental nonliability is not granted as a reward, but as a means of enabling the parents to discharge the duties which society exacts. . . ." Lemmen v. Servais, supra, pages 78, 79.
The legal obligation to provide food, clothing, housing, medical and dental services deals with the necessities of health, morals and well-being with which a child must be provided, or the parents' failure in this regard may be prevented by the state.
See sec. 48.13, Stats.
"It is the right and duty of parents under the law of nature as well as the common law and the statutes of many states to protect their children, to care for them in sickness and in health, and to do whatever may be necessary for their care, maintenance, and preservation, including medical attendance, if necessary. An omission to do this is a public wrong which the state, under its police powers, may prevent. The child has the right to call upon the parent for the discharge of this duty, and public policy for the good of society will not permit or allow the parent to divest himself irrevocably of his obligations in this regard or to abandon them at his mere will or pleasure. . . ." 39 Am. Jur., Parent and Child, p. 669, sec. 46.
Education comes within this concept of care; however, the facts presented by the pleadings in this case do not fall within the class of legal obligations of the type specified in Goller. Supervision of a child's play indeed involves an area which is essentially parental, but society does not exact a legal duty with respect to such an obligation as is the case with providing a child with food, housing, medical and dental services and education. In this regard, construing "other care" as that term is used in relation to the phrase "food, clothing, housing, medical and dental services, " does not warrant an expansion of immunity into an area of parental transactions which is not essentially concerned with providing a child with such similar necessities. "Of course, the rule ejusdem generis ordinarily limits the meaning of general words to things of the same class as those. enumerated under them. 3 Words Phrases, 2328, and cases there cited." Gallagher v. McKeague (1905), 125 Wis. 116, 121, 103 N.W. 233.
The trial court properly overruled the demurrers of the appellants.
By the Court. — Order affirmed.