Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,

J ustices 

# Order

June 3, 2011

141896

NICOLE MICKEL, Personal Representative of the Estate of Jordyn Da nielle Wilson, Deceased, Plaintiff-Appellant,

v SC: 141896 COA: 289037 Oakland CC: 2007-085390-NO DANIEL WILSON, Defendant-Appellee, and

BRIAN JOHNSON and EMERALD LAKES VILLAGE HOMEOWNERS ASSOCIATION, Defendants.

________________ _______________ __________/

On order of the Court, the applicati on for leave to appeal the August 31, 2010 judgment of the Court of Appeals is c onsidered, and it is DE NIED, there being no majority in favor of gr anting leave to appeal.

Y OUNG , C.J. ( concurring ).

I concur in the Court’s order denying leave to appeal.

I write separately to express my st renuous disagreement with my dissenting colleague’s belief that this Court ought to reconsider what remains of the parental immunity doctrine 1 because I vigorously oppose the pr oposition that “the near-universal

1 Plumley v Klein , 388 Mich 1 (1972). Plumley abrogated the parental immunity doctrine but retained two exceptions: “(1) where the a lleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the a lleged 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.” Id . at 8. If one of the exceptions applies, the parent is immune.2

existence of liability insurance has attenuated [the] concern that the doctrine’s abrogation would endanger intra-family relationships.” 2

No matter how conscientious, parents will inevitably make decisions regarding the care and upbringing of their children that, in hindsight , constitute errors in judgment. Unfortunately, some of these errors may re sult in harm to a child. However, everyday parental decision-making should not be complicated by the threat of trial lawyers. Permitting a child (or another pare nt) to sue a parent for an e rror in judgment because an insurance policy exists does not lead to be tter parenting—as those who would abolish what remains of parental immunity must posit. In this case, for example, defendant used the restroom and left his daughter moment arily unattended while she played in the shallow water of a lake during a party attended by thirty to fifty people. Tragically, she

drowned. 3

One can be certain that it is not the ordeal of litigati on that forms the basis of defendant’s regret regarding the outcome of that horrible day. More fundamentally, a monetary judgment against defendant, regard less of the funding source, will not make defendant a better parent to his remaining childre n. It is axiomatic that not every harm is or should be compensable at law—even when insuran ce is footing the bill.

Further abrogation of the “paren tal immunity” doctrine will expose all parental decisions regarding the upbringing of their children—ho wever mundane or discretionary—to litigation. However, my di ssenting colleague argue s that this Court should reconsider the validity of the exceptions to the abrogation of parental immunity articulated by this Court in Plumley . I believe that those exceptions are worthy of

retention.

What remains of the parental immunity do ctrine recognizes that the parent-child relationship merits different treatment for pur poses of tort litigation than the relationships between strangers or business associates. The Plumley exceptions serve vital purposes, such as the “preservation of domestic tranquility and family unity” and “the need to avoid judicial intervention into the core of pa renthood and parental discipline . . . .” 4 The exceptions recognize that “[e]ach parent ha s unique and inimitable methods and attitudes on how children should be supervised. Like wise, each child requires individualized

2 Post , statement of M ARILYN K ELLY , J. (dissenting).

3 Plaintiff, defendant’s former wife and the mother of the deceased child, sued defendant

on behalf of the deceased child for negligent supervision. Th e Court of Appeals affirmed the trial court’s decision to dismiss plaintiff’ s suit because defendant’s conduct fell within

the Plumley exceptions.

4 Hush v Devilbiss Co , 77 Mich App 6 39, 645 (1977).3

guidance depending on intuitive concerns which only a parent can understand.” 5 Thus, although this Court abrogated parental immunity, the Plumley exceptions still recognize and preserve the importance of the fam ily unit and the need for its autonomy. 6

The notion that “the near-universal exis tence of liability insurance has attenuated [the] concern that the doctrine’s abrogation wo uld endanger intra-family relationships” is a singularly misguided and shocking idea. Its animating value is the view that litigation, in and of itself, serves some uni versal therapeutic goal. Only a lawyer could believe this. Litigation among family members over family problems is not a positive development for our society for any group othe r than those whose livelihood depends upon the promotion of litigation. Indeed, the fact that insurance might be ava ilable to fund litigation between parents over child rearing disputes is likely to promote collusive suits.

Unlike the dissenting Justice, who believes that the doctrine of parental immunity is “ripe for reconsideration,” 7 I do not support treating fa mily members as though they are no different from any other commercial par ties to a lawsuit. Th e family unit is a unique, revered instituti on under assault from many quarters . This Court ought not be

one of its assaulters.

I support retaining the exceptions to the abrogation of parental immunity because the exceptions value the inte grity and cohesion of the fam ily rather than promoting litigation. Accordingly, I concur in th e Court’s order denyi ng the application.

C AVANAGH and H ATHAWAY , JJ., would grant leave to appeal.

M ARILYN K ELLY , J. ( dissenting ).

This is a case involving the alleged failure of a father to provid e supervision to his three-year-old daughter while sh e bathed in an Oakland County lake. The child drowned. The legal issue is whether a lawsuit will lie on behalf of the daught er against the father for his alleged negligence. The concurring justice equates my willingness to entertain this legal question with a belief on my part that family members should be treated like parties to a commercial lawsuit. He suggests th at I favor an assault upon the family unit. This is a gross misrepresentation of my position.

My belief is that the Court should grant leave to reconsider the scope and validity of the doctrine of parental i mmunity for a most appropriate reason: the doctrine is being

5 See Paige v Bing Construction Co , 61 Mich App 480, 485 (1975).

6 See Hush , 77 Mich App at 646.

7 Post, statement of M ARILYN K ELLY , J. (dissenting).4

applied differently in different courts throughout the state, a nd the Court should clarify its

status.

Traditionally, Michigan cour ts followed the common law doctrine of parental immunity. This precl uded children from brin ging actions grounded in negligence against their parents. 8 However, in 1972 in the case of Plumley v Klein

, 9 this Court partially abrogated the doctrine. Plumley , an automobile negligence case, noted that the modern trend was toward abrogation and that several states that onc e accepted the doctrine had

abandoned it. 10 It also noted that this Court ha d already moved toward abrogation and

that the near-universal existence of liabilit y insurance has attenuated concern that the doctrine’s abrogation would endange r intra-family relationships. 11

This Court then held that:

[a] child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligen ce 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 allege d negligent act involves an exercise of reasonable parental discre tion with respect to the provision of food, clothing, housing, medical a nd dental services, and other care. 12

Although Plumley did not entirely abolish the doct rine of parental immunity, it significantly limited it, making immunity the ex ception rather than the rule. The Court has not revisited the doctrine in 39 years. In the interim, questions have arisen regarding the proper application of what remains of the doctrine. Not surprisingly, lower courts have not always agreed about them. 13

This case presents an exampl e of the inconsistent appli cation that has resulted. Here, defendant is the deceased child’s father and plaintiff’s former husband. Plaintiff is

8 Elias v Collins , 237 Mich 175 (1926).

9 Plumley v Klein , 388 Mich 1 (1972).

10 Id. at 5-6.

11 Id. at 7.

12 Id. at 8 (citation omitted).

13 See, e.g., Mickel v Wilson , unpublished opinion per curiam of the Court of Appeals, issued August 31, 2010 (Docket No. 289037), p 3 (“We acknowledge that the phrase, ‘exercise of reasonable parental authority’ has not been consistently interpreted in this Court.”). The Court of Appeals also found there to be an “apparent lack of clarity” in this

area of the law. Id. at 4.5

the mother and personal represen tative of the child. In that capacity, she sued defendant for negligence and gross negligence.

The trial court applied Plumley and granted summary disposition to defendant on the ground of parental immunity. It found that plaintiff’s allegations of negligent supervision were barred by language in Plumley that provides a parent with immunity where “the alleged negligent act involves an exercise of reasonable parental authority

over the child.” 14

Plaintiff appealed to the Court of Appeal s claiming that, as a matter of law, the trial court erred in applying the parental imm unity doctrine. In a split decision, the Court affirmed the lower court, concluding that it had properly applied the doctrine. Judge

G LEICHER dissented and urged this Court to revisit the doctrin e with a view to entirely abrogating it.

This case raises a significa nt question left open in Plumley —whether the negligent supervision of a child falls with in the ambit of the parental immunity doctrine. As Judge

G LEICHER astutely noted in her dissenting opi nion, it is questionable whether the Plumley

Court intended to immunize the ne gligent supervision of a child:

Logically, it makes no sense that the Supreme Court in Plumley rejected a broad form of “intra-family tort immunity” in “the interests of justice and fairness,” yet deliberatel y maintained broad immunity for parental supervision. The supervis ion of children consumes most of a parent’s time and energy. As the case law since Plumley demonstrates, a

substantial number of tort claims involve allegations falling under the parental supervision umbrella. Bu t, notwithstanding that parental supervision encompasses an enormous range of regular parental activities, the Supreme Court in Plumley did not specifically incorporate the term “supervision” in the list of exceptions to immunity. Instead, the Supreme

Court shielded from tort liability a discrete and narrowly drawn list of parental acts: “the provi sion of food, clothing, hous ing, medical and dental services, and other care.” I cannot conceive why the Supreme Court would expressly maintain immunity for disc retionary decisions that occur only occasionally, like deciding wh ether to take a child to the doctor or dentist, yet neglect to mention that it also me ant for immunity to cover the single most frequently performed parental task. [15]

14 Plumley

, 388 Mich at 8.

15 Mickel v Wilson, supra, 2-3 (G LEICHER

, J., dissenting) (citations omitted).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk June 3, 2011

t0531 6

Not only is the doctrine being applie d inconsistently but, as Judge G LEICHER ’s dissent suggests, the Court of Appeals may be applyi ng it in circumstances that fall outside the narrow exceptions promulgated in Plumley

.

This Court has not addressed the doctrine of parental immunity in nearly 40 years.

The lack of clarification from the Cour t has generated confusion and resulted in inconsistent application of the doctrine. Also, as the split Court of Appeals opinion illustrates, a significant question exists about whether parental immunity applies to cases of parents’ negligent supervision of their ch ildren. For these reasons, I believe that the doctrine of parental immunity is ripe for recons ideration, or at least clarification, by this Court. I would grant leave so that this Cour t could speak on this is sue of jurisprudential significance.

Z AHRA , J., did not participate because he was on the Court of Appeals panel.