In Lemmen v. Servais (1968), 39 Wis.2d 75, 158 N.W.2d 341, this court held the failure to properly instruct a six-year-old child as to safety procedures in leaving a school bus and crossing a highway fell within the "exercise of ordinary parental discretion with respect to other care of their child.Summary of this case from Thoreson v. Milwaukee S. Transport Corp.
Argued April 9, 1968. —
Decided May 7, 1968.
APPEAL from an order of the circuit court for Brown county: RAYMOND J. RAHR, Judge. Affirmed.
For the appellants (third-party plaintiffs) there was a brief by Lontkowski Lontkowski of Green Bay, and oral argument by Edward C. Lontkowski.
For the respondents (third-party defendants) there was a brief by Cornelisen, Denissen, Kranzush, Kuehn Condon, attorneys, and David J. Condon of counsel, all of Green Bay, and oral argument by David J. Condon.
Debbie Lemmen (plaintiff), six years of age, was a passenger on a school bus driven by Edward O. Servais and insured by Mutual Service Casualty Insurance Company (defendants). The school bus stopped on a heavily traveled highway to discharge Debbie and another passenger. She alighted from the school bus, proceeded to cross the highway in front of the bus and while doing so was struck by an automobile traveling in the opposite direction.
The defendants filed a third-party complaint against the parents of Debbie and paragraph 13 thereof alleges as follows:
". . . Robert Lemmen and Dorothy Lemmen, his wife, were causally negligent with respect to the safety of their minor child, the plaintiff, Debbie Lemmen, and that they failed to properly instruct Debbie Lemmen about safety procedures for leaving the school bus and crossing the highway, although they knew or should have known of the great number of cars using the United States Highway 41 which the plaintiff, Debbie Lemmen, had to cross, and that they knew or should have known of the high speed the motorists used on said highway; that they have further answered alleging that the said negligence was the cause of said injuries and the alleged resulting damages."
The parents, as third-party defendants, demurred to the third-party complaint. The trial court found that such complaint failed to state a cause of action against the parents and entered an order dismissing it with prejudice.
The defendants have now appealed from the order sustaining the demurrer to the third-party complaint against the parents of Debbie Lemmen.
The issue presented is whether the third-party complaint alleging the parents to be causally negligent in failing to properly instruct a six-year-old child in how to leave a school bus and cross a highway states facts sufficient to constitute a cause of action for contribution to the child's claim for damages.
In Goller v. White (1963), 20 Wis.2d 402, 413, 122 N.W.2d 193, this court abrogated the parental-immunity rule in negligence cases 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.
We concur with the finding of the trial court that in this case "the parents cannot be held negligent in any respect," and in doing so conclude that the parents of Debbie Lemmen were acting within the scope of an exercise of ordinary parental discretion with respect to other care of their child. Such a determination is entirely consistent with consideration given the matter of parental responsibility in Reber v. Hanson (1952), 260 Wis. 632, 635, 636, 51 N.W.2d 505:
"`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.
"`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, . . . A parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent's duty to watch over such child and to guard it from danger. In such case, the parent may be regarded in a sense as a repositary of a trust to nurture and protect his offspring. Parents are, of course, not required to do the impossible in caring for their children. As a rule, however, they are bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary.' 39 Am. Jur., Parent and Child, p. 669, sec. 46." (Emphasis added.)
In Goller, this court reviewed the historical background of the doctrine of parental immunity. The case extensively examines and considers case law authority in this and other jurisdictions as well as the treatises of prominent authorities. The two exceptions set forth in Goller are directed toward preserving, fostering and maintaining a proper and wholesome parent-child relationship in a family. 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. Cowgill v. Boock (1950), 189 Or. 282, 218 P.2d 445.
The Michigan Court of Appeals in favorably considering the Goller exclusions has chosen to identify the Wisconsin rule as a "parental functions immunity rule." In doing so, the Michigan court stated that a sensible rule would allow children to recover damages for injuries resulting from acts outside of the parental relationship but yet not subject parents to legal action for common-place failures in performance of parental duties. While the Michigan approach is somewhat different than that of Wisconsin, it tends to emphasize the concept of the Goller exceptions. Rodebaugh v. Grand Trunk Western R. R. (1966), 4 Mich. App. 559, 145 N.W.2d 401.
The familial obligations imposed by nature because of the parental relationship, imperfect though they may sometimes be because of the ever present common denominator of human behavior, are quite distinct from the general obligation which the law imposes upon every one in all his relations to his fellowmen, and for the breach of which it gives a remedy. 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.
The trial court did not allow costs to either party. Subsequent to the filing of the appeal, the parties filed with this court an original stipulation as to allowance of costs in this proceeding and in a related proceeding not presently before this court. The stipulation is approved and pursuant to the provisions thereof it is ordered that costs be allowed as therein provided.
By the Court. — Order affirmed.