Mayberry v. Pryor , 134 Mich. App. 826 ( 1984 )

134 Mich. App. 826 (1984) 352 N.W.2d 322

MAYBERRY
v.
PRYOR

Docket No. 63596.

Michigan Court of Appeals.

Decided June 4, 1984.

Skinner & Gustafsen (by William W. Allsopp), for plaintiff.

Collison, Chasnis & Dogger, P.C. (by John A. Chasnis), for defendants.

Before: DANHOF, C.J., and ALLEN and K.N. HANSEN,^[*] JJ.

K.N. HANSEN, J.

In this action, plaintiff sought to recover damages for injuries allegedly suffered by Justin Mayberry when bitten by a dog. The circuit court granted summary judgment for defendants Alfred and Carol Pryor. Although the circuit court did not specify the subrule under which it acted, it is apparent from the record that the court held that there was no genuine issue as to any material fact and that defendants Pryor were entitled to judgment as a matter of law, GCR 1963, 117.2(3). This Court granted plaintiff's delayed application for leave to appeal.

The affidavits and other evidence before the circuit court indicate that, at the time of the accident, Justin Mayberry was just short of four years old and was temporarily in the foster care of defendants Pryor pursuant to a probate court order. Plaintiff's complaint alleged that Justin was attacked by a dog belonging to defendants Day when Justin was left alone and unattended on the front porch or in the yard of the residence of defendants Pryor. The complaint further alleged that defendants Pryor failed to provide Justin with supervision adequate to assure his safety and instead recklessly and negligently allowed him to enter into a situation foreseeably dangerous to his person.

Summary judgment for defendants Pryor was based on parental immunity. In Plumley v Klein, 388 Mich. 1, 8; 199 NW2d 169 (1972), the Court stated the rule of parental immunity which now prevails in Michigan:

"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." (Footnote omitted.)

For other jurisdictions adopting this rule and the two exceptions, see Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963), Silesky v Kelman, 281 Minn 431; 161 NW2d 631 (1968), and Rigdon v Rigdon, 465 S.W.2d 921 (Ky, 1971).

In Hush v Devilbiss Co, 77 Mich. App. 639, 647; 259 NW2d 170 (1977), the Court concluded that the exceptions to the abolition of parental immunity stated in Plumley could be invoked by a person standing in loco parentis to the child. The Court explained the factors relevant to determination of in loco parentis status:

"Legally, the assumption of in loco parentis status is a question of intent. Intent to assume parental status can be inferred from the acts and declarations of the parties. Some factors to consider are the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; the extent to which duties commonly associated with parenthood are exercised. Providing financial support may be an unimportant consideration in light of the relative situations of the person standing in loco parentis and the real parents. In some cases, while providing financial support may be unnecessary, the benefits flowing to the child by reason of someone's assumption of the other infinitely various parental duties may be most essential." (Footnote and citations omitted.) 77 Mich. App. 649.

In re Allison, 336 Mich. 316, 321; 58 NW2d 90 (1953), contains the following definition:

"A foster father is defined as a man who has performed the duties of a parent to the child of another by rearing the child as his own child."

Nothing in the statutes governing temporary placement of dependent or neglected children by the probate court in foster care is inconsistent with this definition. See MCL 712A.18; MSA 27.3178(598.18), MCL 712A.19; MSA 27.3178(598.19), and MCL 400.18c; MSA 16.418(3). By assuming temporary foster care of Justin, defendants Pryor demonstrated their intent to perform the duties of parents to the child and thus their intent to temporarily assume parental status. We conclude that, as a matter of law, persons who assume temporary foster care of a child pursuant to probate court order stand in loco parentis to the child. For a decision from another jurisdiction reaching the same result, see Goller v White, supra.

The gravamen of plaintiff's complaint is negligent parental supervision. In cases interpreting the Plumley rule, this Court has determined that an action for negligent parental supervision is barred because it involves the parent's exercise of authority over the child and thus falls within the first exception stated in Plumley to the abolition of parental immunity. Paige v Bing Construction Co, 61 Mich. App. 480, 483-486; 233 NW2d 46 (1975); McCallister v Sun Valley Pools, Inc, 100 Mich. App. 131, 137-139; 298 NW2d 687 (1980); American States Ins Co v Albin, 118 Mich. App. 201, 207; 324 NW2d 574 (1982). Plaintiff relies on Cole v Sears, Roebuck & Co, 47 Wis 2d 629, 634; 177 NW2d 866 (1970), in which the court held that a parent's supervision of a child's play did not fall within the second exception to the abolition of parental immunity, that exception being for the exercise of parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. The Wisconsin court explained:

"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."

We do not agree with the Wisconsin court for two reasons. First, as was pointed out in Paige, 61 Mich. App. 484, the Wisconsin court considered only the second exception to the abolition of immunity. Michigan courts have relied on the first exception to reach a contrary conclusion. Second, we cannot account for the Wisconsin court's statement that society does not exact a legal duty from a parent with respect to supervision of a child's play. Where there is no legal duty, there can be no actionable negligence. Butrick v Snyder, 236 Mich 300, 306; 210 N.W. 311 (1926). The reasoning by which the Wisconsin court concluded that the action was not barred by parental immunity would seem to leave the child without a cause of action at all.

In Grodin v Grodin, 102 Mich. App. 396, 402; 301 NW2d 869 (1980), the Court concluded that the use of the word "reasonable" in the second exception stated in Plumley to the abolition of parental immunity required a determination by the trier of fact and therefore precluded summary judgment. "Reasonable" also appears in the first exception. However, in Paige, supra, an opinion by the author of Grodin, the Court noted the impossibility of determining on a case-by-case basis the extent of the first Plumley exception, 61 Mich. App. 485-486, and held that a complaint for negligent parental supervision failed to state a claim on which relief could be granted. Because the first rather than the second Plumley exception is at issue here, Paige rather than Grodin is the controlling authority.

Moreover, we believe that Grodin was incorrectly decided. The Grodin Court's reasoning was as follows:

"We reverse and remand for a determination of the `reasonableness' of the alleged negligent conduct. A determination that the defendant's conduct was unreasonable would take the action out of the second exception of Plumley, supra, and thus parental immunity would not be available to defendant Roberta Grodin. A determination by a jury that the defendant mother acted reasonably in her exercise of her discretion would give rise to Plumley parental immunity and absolve her of liability." 102 Mich. App. 401.

The Grodin Court misinterpreted Plumley when it focused on the reasonableness of the alleged negligent conduct. An examination of the language from Plumley previously quoted shows that the Plumley Court used the word "reasonable" to limit the scope of parental authority and parental discretion falling within the exceptions. Proper application of the Plumley exceptions requires a determination, not of the reasonableness of the defendant's conduct, but rather of the scope of "reasonable parental authority" and of "reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care".

The judiciary has the power to change the common law. Placek v Sterling Heights, 405 Mich. 638, 656; 275 NW2d 511 (1979). In Plumley, the Court exercised that power by abolishing common-law parental immunity with certain exceptions. Because no authority permits the judiciary to delegate to the jury the power to change the common law, questions concerning the scope of the Plumley exceptions must be questions of law, and not questions of fact. Moreover, if the scope of the Plumley exceptions was for the trier of fact to determine, the law of parental immunity would vary according to the specific jury impaneled or the specific part of the state in which the case was tried. A similar consideration was among the reasons stated in Cassidy v McGovern, 415 Mich. 483, 501-502; 330 NW2d 22 (1982), for the Court's conclusion that application of the phrase "serious impairment of body function", MCL 500.3135; MSA 24.13135, was primarily a question of law to be resolved by courts, not juries. We conclude that, despite the uses of the word "reasonable" in the Plumley exceptions, determination of whether conduct falls within the exceptions is a question of law for the court. The circuit court did not err by granting summary judgment for defendants Pryor.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.