Opinion
No. 105369.
November 15, 1996.
Leave to Appeal Denied November 15, 1996:
Court of Appeals No. 184769.
This negligence action, brought on behalf of a child against her father, was dismissed on the basis of parental immunity. The Court of Appeals affirmed in an unpublished opinion.
Defendant filed a MCR 2.116(C)(8) and C(10) motion for summary disposition, arguing that, even if he was negligent, he was protected by the parental immunity exception set forth in Plumley v Klein, 388 Mich. 1 (1972). The judge granted summary disposition on the basis of parental immunity — MCR 2.116(C)(8). The Court of Appeals affirmed.
I would grant leave to appeal.
I
Defendant father and plaintiff mother had a child out of wedlock. The mother and child moved in with the father in a home he was remodeling. On March 21, 1993, about five weeks after the child was born, she was sleeping in a portable crib in what was to become her room. She awoke and defendant picked her up to feed and diaper her. As he walked across the room, he tripped on construction materials and the family dog, dropping the child, which resulted in a closed head injury.
In Plumley v Klein, 388 Mich. 1 (1972), this Court abrogated parental immunity providing two exceptions: where the alleged negligent act involved an exercise of reasonable parental
• authority over the child, or
• discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
Plumley abrogated most parental immunity, but left the two exceptions.
A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. [ 388 Mich. 8 (emphasis added).]
In picking up the infant to feed and diaper her, the father was exercising reasonable parental authority, but plaintiff has not claimed that defendant was negligent in picking up the child rather than letting her lie in bed presumably crying.
While the plaintiff claimed that it was negligence to fail to carry the baby in a safe area, free of debris, etc., it is also claimed that the father had a duty to act "cautiously and carefully in moving the minor" from one room to another, and that he was negligent in failing to act "cautiously and carefully in transporting his child from one room to another. ... "
While I am inclined to agree that there is parental immunity for carrying a baby in a house that is not free from debris — that ordinarily the decision regarding the amount of debris (construction materials, toys, briefcases, newspapers, etc.) that is tolerable is in the area of parental discretion, the exercise of which, ordinarily, should be regarded as reasonable, it is a separate question whether the father acted cautiously and carefully in transporting the child from one room to another.
There is no immunity for negligently transporting a child from room to room at an airport, hospital, or other building. Nor is there immunity for negligently transporting a child merely because the rooms are in a house provided by the parent.
II
The Court of Appeals has provided explanations of the first of the two exceptions, but the second has far fewer interpretations.
The first Plumley exception has been extensively discussed in decisions of this Court. See, for example, Paige v Bing Construction Co, 61 Mich. App. 480; 233 N.W.2d 46 (1975); Hush v Devilbiss Co, 77 Mich. App. 639; 259 N.W.2d 170 (1977); McCallister v Sun Valley Pools, Inc, 100 Mich. App. 131; 298 N.W.2d 687 (1980); Wright v Wright, 134 Mich. App. 800; 351 N.W.2d 868 (1984); Mayberry v Pryor, 134 Mich. App. 826; 352 N.W.2d 322 (1984), rev'd on other grounds 422 Mich. 579; 374 N.W.2d 683 (1985); Haddrill v Damon, 149 Mich. App. 702; 386 N.W.2d 643 (1986). All of these cases held, either explicitly or implicitly, that claims of negligent supervision of a child are barred under the first Plumley exception. See Thelen v Thelen, 174 Mich. App. 380, 384; 435 N.W.2d 495 (1989). [ Ashley v Bronson, 189 Mich. App. 498, 501-502 (1991).]
Ashley interpreted the second prong of the Plumley test. In rejecting earlier cases that focused on the reasonableness of the challenged action, Ashley held that negligence is to be presumed, and the question then becomes whether immunity is nonetheless proper. In that case, the Court of Appeals held that the defendant father's decision to maintain a swimming pool at the family's home and to build stairs and a gate leading to the deck of the pool was an exercise of reasonable parental discretion with respect to the providing of housing for the child. The plaintiff was able to ascend the stairs and access the deck and later fell into the pool, suffering brain damage because of the amount of time she was under water.
The Court of Appeals has recently decided another case involving the first exception. In Phillips v Deihm, 213 Mich. App. 389 (1995), the Court held that a grandmother's failure to intervene in the face of a known or knowable risk of sexual abuse to the child did not constitute a reasonable exercise of parental discretion that would have entitled the grandmother to the defense of parental immunity.
This Court has not addressed the exceptions since the Plumley decision twenty-four years ago. There is extensive case law from other jurisdictions, including an ALR annotation, to facilitate the inquiry proceeding more smoothly than if the Court were operating in a vacuum.
6 ALR4th 1066, anno: Liability of parent for injury to unemancipated child caused by parent's negligence — Modern cases.
Plumley referred to the decisions of sister states, and how other states have defined the exceptions is appropriate for this Court to consider. Particularly since these cases usually develop when the homeowner's insurance company refuses to pay and then defends on the basis of parental immunity, this is an issue that will continue to be litigated and hence is of jurisprudential significance.
I would grant leave to appeal.