Anderson Ex Rel. Anderson v. Stream , 295 N.W.2d 595 ( 1980 )

SCOTT, Justice.

These two appeals raise similar issues regarding the exceptions to the abrogation of parental immunity as adopted by this court in Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968). In both cases, the trial courts concluded that the exceptions were applicable and thus held that the injured children had no actionable claim against their respective parent(s). We reverse.

The operative facts of these appeals have been stipulated to by the respective parties:

Anderson v. Stream v. Anderson

Edward and Ruth Anderson are the parents of Breeanna Anderson, who was born on June 16, 1975. Defendants Edna and Martin Stream live in a house next door to the Anderson home, and the two families share a common driveway. The line dividing the two properties runs generally down the center of the driveway. There is no fence between the two houses.

On Sunday morning, May 15, 1977, Bree-anna, who was approximately 23 months of age, asked her parents if she could go outside and play. Breeanna was allowed to do so, but was told to “stay in the back.” While Breeanna played outdoors, Mr. Anderson read the Sunday newspaper and Mrs. Anderson did housework. About 10 or 15 minutes after she began to play, Breean-na was injured when Edna Stream backed her automobile over the child’s leg. After the accident occurred, Breeanna was found sitting partially on the Streams’ lawn and partially on the portion of the driveway located closest to the Stream home.

Neither Mr. nor Mrs. Anderson saw the accident. However, during the 10-15 minute period Breeanna was playing, Mrs. Anderson saw her daughter twice; once, when Breeanna was playing by the back step, and later, when she was playing in the front yard of the Anderson home. Also, the parties agree that the Andersons had observed Breeanna playing on or about the common driveway on several occasions prior to May 15, 1977.

Edward Anderson, as guardian for his minor daughter, and in an individual capacity, brought an action ágainst the Streams for the damages which resulted from the child’s injuries. The Streams later impleaded Mr. Anderson and his wife for contribution and indemnity. Thereafter, the Andersons moved for summary judgment against the Streams on the third-party complaint, claiming no cpmmon liability existed because they could not be held liable to their child. The district court granted the motion and dismissed the third-party complaint on the ground that parental immunity was applicable. The Streams now appeal from the judgment entered in the district court.¹

Nuessle v. Nuessle

On the afternoon of October 4, 1975, Michael Nuessle, who was about 3 years old at the time, accompanied his father, James Nuessle, on an errand to a drugstore located on the northwest corner of the intersection of Victoria Street and Grand Avenue in St. Paul. Defendant entered the drugstore, and after 10 to 15 seconds noticed that his son was not with him. It is unclear whether Michael actually entered the store. After looking briefly in the store for his son, defendant, through the glass door of the store, saw Michael crossing Grand Avenue. Michael was walking alongside an adult male, whom the child may have mistaken for his father. Defendant hurried outside, and without looking for traffic and in an act which defendant described as one of “panic,” yelled Michael’s nickname, “Mick-er." The child turned around, saw his father, and took a few steps to the north, recrossing the center line of Grand Avenue, while remaining in the crosswalk. Michael was then struck by the left front part of an automobile driven by a westbound driver who did not see the boy before hitting him. The child sustained serious injuries, including damage to his brain stem.

This action was commenced to recover damages against James Nuessle for Michael’s injuries. Defendant subsequently moved for summary judgment on the ground that in this case the parental immunity doctrine operated to bar his son’s claim. The trial court agreed, ruling that the first exception to the abolishment of parental immunity was applicable. Plaintiff now seeks review of the district court’s decision.

The parties raise a number of issues in these appeals, including: whether the parents’ conduct constitutes an “affirmative act of negligence” as recognized by this court in Romanik v. Toro Co., 277 N.W.2d 515 (Minn.1979);² whether the parents’ alleged wrongdoing involves parental supervision; whether parental supervision qualifies as an exercise of “parental authority” under the first Silesky exception, and, if so, whether the conduct in question is “reasonable” within the meaning of Silesky; and, solely in regard to the Anderson appeal, whether the parents’ alleged negligent act involves an exercise of “parental discretion with respect to the provision * * * of housing” as contemplated by the second Silesky exception, and, if so, whether that exercise of parental discretion is “ordinary.” An additional issue presented, and the one we find decisive in these cases, is whether the Silesky exceptions to the abrogation of parental immunity should be retained. After a careful and painstaking examination of this difficult and important question, we conclude, for the reasons discussed herein, that the exceptions should no longer be followed in this state.

The Silesky decision, rendered in 1968, abrogated the long-standing doctrine of parental immunity subject to the following exceptions: “(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 ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care * * *.” 281 Minn. 442, 161 N.W.2d 638 (emphasis added). These exceptions were expressly adopted from the Wisconsin Supreme Court’s decision in Goller v. White, 20 Wis.2d 404, 122 N.W.2d 193 (1963). The language used in Silesky is identical to that set out in Goller except for the addition by this court of the term “reasonable” to modify the phrase “parental authority,” in the first exception.

While the Silesky court was well-intentioned in continuing the immunity doctrine in regard to certain parental conduct, application of the exceptions has proven to be very difficult because their precise scope is by no means clear. Compare, e. g., Thoreson v. Milwaukee & Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745 (1972), with Paige v. Bing Const. Co., 61 Mich.App. 480, 233 N.W.2d 46 (1975) (in construing the “parental authority” exception with respect to parental supervision, the Wisconsin and Michigan courts reached different results). The prospect of applying these vaguely worded, highly subjective standards to the ever-increasing number of parent-child liability cases coming before this court³ is reason to reflect upon the degree of difficulty in meaningful interpretation of the exceptions and alternative means of providing parents with some leeway in exercising their parental authority and discretion. We believe that since the problems inherent in construing the Silesky exceptions present a real danger of arbitrary line-drawing and in light of the fact that instructing the jury on a “reasonable parent” standard adequately protects functions which are parental in nature, the continued existence of the Sile-sky exceptions cannot be justified.

As noted supra, were we to apply the Silesky exceptions many troublesome questions would be encountered. Perhaps the best example of the perplexing and frustrating problems associated therewith is the interpretation of the terms “reasonable” and “ordinary” as they are used in the first and second exceptions, respectively. For example, on the surface it would appear that the first exception does not preclude liability in the event the parent acted “unreasonably” in exercising his parental authority. However, such a construction would be co-extensive with the conclusion that the parent was negligent. Accordingly, a literal interpretation of the modifier “reasonable” would mean that a parent is immune from liability only in situations where he is non-negligent in exercising his parental authority. This result was surely not intended by the Silesky court, as it would provide no real immunity and thus makes a sham of the first exception. Construction of the term “ordinary” in the second exception presents a similar problem.

Consequently, it is suggested by some that the terms “reasonable” and “ordinary” be interpreted to exclude “outrageous” acts of parental authority or discretion from the scope of the Silesky exceptions. Although this proposed interpretation would give some vitality to the exceptions, it is admittedly highly subjective and would require a case-by-case analysis by a court of whether the “outrageous” test was met. As such, this standard is not very helpful, and certainly adds to the potential for arbitrary decision-making in the area.

Difficulty in application would not, in and of itself, cause us to cast aside the Silesky exceptions. The determinative consideration upon which we rest our decision is that the areas of parental authority and discretion, for which the Silesky exceptions were designed to provide safeguards, can be effectively protected by use of a “reasonable parent” standard, as adopted by the court in Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971). In that case, the California Supreme Court completely abolished the doctrine of parental immunity. While recognizing that “traditional concepts of negligence cannot be blindly applied to” acts involving parental authority and discretion, the court refused to adopt the Goller exceptions by reasoning, in part, that “[t]he Goller view will inevitably result in the drawing of arbitrary distinctions about when particular parental conduct falls within or without the immunity guidelines.” 3 Cal.3d 921, 92 Cal.Rptr. 293, 479 P.2d 653. Instead, the Gibson opinion held that the better approach is to have the jury take into consideration the parental function when determining whether the parent acted negligently. As stated by the Gibson court:

The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent’s conduct is this: What would an ordinarily reasonable and prudent parent have done in similar circumstances?

3 Cal.2d 921, 92 Cal.Rptr. 293, 479 P.2d 653 (emphasis in original).

The Gibson decision is supported by Judge Puchsberg’s incisive concurring opinion in Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978), where it is advocated that “each parent-child case * * * be decided by answering the broad question at the heart of negligence law: What would an ordinarily reasonable and prudent person — taking into account the parent-child relationship—have done in similar circumstances?” 46 N.Y.2d 346, 413 N.Y.S.2d 349, 385 N.E.2d 1277. Judge Puchsberg continues:

A standard of “reasonable care under the circumstances,” well understood in tort law * * *, would not require that a parent live up to some idealized picture of a model father or mother. A mere misjudgment in supervising one’s child would not necessarily constitute a tor-tious breach of duty. In determining whether the bounds of reasonable behavior have been transgressed, all of the relevant facts and circumstances would have to be considered. In a supervision situation, among the foremost are bound to be the existence of the relation of parent and child; the practical responsibilities, expectations and limitations that flow therefrom; and the judgmental nature of the decisions a parent must make in functioning in that capacity.

Without developing this point in exten-so, the weight which a court or jury will ascribe to each of these and other related factors will depend on the facts peculiar to the particular case. For example, aside from the facts relating to the negligence itself, such variable matters as the age, mental and physical health, intelligence, aptitudes and needs of the child involved; the presence in the family of other children competing for parental time and attention; and the economic, social and physical environment in which the parental conduct occurs, all may be expected to play a part.

It is hard to see why such a tailoring of the results of each case to its facts is not to be preferred to the erection of rigid classifications, be they catalogued as “trespasser,” “licensee” or “business visitor,” as “grossly” or “ordinarily” negligent or as “supervising parent.” Looking to the entire picture, rather than merely the labels, is the surer path to a just result.

46 N.Y.2d 346, 413 N.Y.S.2d 349, 385 N.E.2d 1277 (citations omitted). We also note that several commentators have endorsed the Gibson decision as being superior to the Golier view. Note, Intrafamiliai Tort Immunity in New Jersey: Dismantling the Barrier to Personal Injury Litigation, 10 Rut.-Cam.L.J. 661, 679 (1979); Note, The “Reasonable Parent” Standard: An Alternative to Parent-Child Tort Immunity, 47 U.Col.L.Rev. 795, 808 (1976); Note, The Parent-Child Tort Immunity Law in Massachusetts, 12 New Eng.L.Rev. 309, 331 (1976); Comment, Parental Immunity: The Case for Abrogation of Parental Immunity in Florida, 25 U.Fla.L.Rev. 794, 801 (1973); Comment, Parental Immunity: California’s Answer, 8 Idaho L.Rev. 179, 187 (1971).

Like the above authorities, our preference for the Gibson approach recognizes the practical advantages offered by utilization of a “reasonable parent” standard. It attains the Silesky goal of according parents some flexibility in their exercise of parental functions, but the interpretive pitfalls associated with the Silesky exceptions are avoided. In reaching this conclusion, we reject the contention that juries are incapable of rationally and equitably deciding whether a parent has acted negligently in exercising his parental control and discretion. Our system of justice places great faith in juries, and we see no compelling reason to distrust their effectiveness in the parent-child context. Nor do the arguments relating to family discord and collusion require a different result than that reached herein. These claims, which were found to be unpersuasive in the initial decision abrogating intrafamilial immunity, see Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966)⁴ (involving a child’s liability to his parents), are no more convincing today.⁵

It should also be observed that our decision to abolish the Silesky exceptions in favor of a “reasonable parent” standard is supported by basic principles of public policy. A fundamental concept of our legal system and a right guaranteed by our state constitution, is that a remedy be afforded to those who have been injured due to the conduct of another. See, Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975); Minn.Const. art. I, § 8.⁶ Related thereto is the equitable doctrine of contribution, which requires that those who contribute to an injury bear liability in direct proportion to their relative culpability. See, e. g., Tolbert v. Gerber Industries, 255 N.W.2d 362 (Minn.1977). These considerations are promoted by today’s holding.

Finally, the prevalence of liability insurance is a pertinent and important factor in subjecting parents to suit by their children. Balts, supra; Silesky, supra. After all, our paramount objective is to compensate the child for his or her injuries, and the widespread existence of homeowner’s and renter’s liability insurance ⁷ will help effectuate this goal. To deny the injured child this source of funds on the ground that prosecution of the claim would in some way disrupt the family unit is an anomaly this court will not tolerate. Similar sentiments were expressed in the Balts, supra, opinion: “[Wjhere a child is protected by liability insurance there is more likelihood of friction, resentment, and discord by a parent’s failure to assert a claim than by instituting suit.” 273 Minn. 430, 142 N.W.2d 73. See, also, Baudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969).⁸

In summary, by this decision we totally abolish the doctrine of parental immunity ⁹ and consequently overrule Silesky to the extent it retained parental immunity in the form of the aforementioned exceptions. In so doing, we adopt the approach of the California Supreme Court in Gibson, supra, of charging the jury on a “reasonable parent” standard.

Reversed and remanded for trial.

1 . We note that although the trial judge ordered judgment in favor of the Streams, he did not, in accordance with Minn.R.Civ. P. 54.02, state that “there is no just reason for delay” for the entry of judgment. Consequently, since the judgment does not adjudicate all claims and rights of all parties, it is nonappealable. Financial Relations Board, Inc. v. Pawnee Corp., 308 Minn. 109, 240 N.W.2d 565 (1976); Buchman Plumbing Co. v. Regents of Univ. of Minn., 298 Minn. 328, 196 N.W.2d 629 (1972); Shryock v. Mitchell Concrete Products, 87 S.D. 566, 212 N.W.2d 498 (1973). However, due to the importance of the issues raised by this case, we hereby grant discretionary review as provided for in Minn.R.Civ.App. P. 105.

2 . The Romanik decision is discussed in 6 William Mitchell L.Rev. 219 (1980).

3 . Including the instant appeals, at least four cases presently before this court raise issues relating to the application of the Silesky exceptions. The other appeals are: Berman v. Sunbeam Corp., Case No. 49610 and Graham v. Minneapolis, Northfield and Southern Railway, Case No. 50764.

4 . In regard to the family disruption contention, the Balts decision reasoned that:

The argument that litigation by a parent against a child promotes discord is difficult to follow. Where a wrong has been committed of a character sufficiently aggravated to justify recovery were the parties strangers, the harm has been done. We believe the prospect of reconciliation is enhanced as much by equitable reparation as by denying relief altogether, particularly where the defendant is insured.

273 Minn. 429, 142 N.W.2d 73; see, also, discussion of liability insurance, text, infra. With respect to collusio.n, the Balts court stated that a jury is capable of seeing through “colored testimony” and consequently our “judicial system is adequate to accommodate itself to threats of collusion * * 273 Minn. 431, 142 N.W.2d 73.

5 . We are similarly unpersuaded by the contention that abolishment of the exceptions is unwise because the concept of impleader, see Minn.R.Civ. P. 14, may operate to force parents to involuntarily have their alleged negligence aired before a jury. Even assuming that the parent was immune from liability, his or her negligence would still be litigated and submitted to the jury for a comparative fault determination, notwithstanding a parent’s desire to keep the matter private. See, Lines v. Ryan, 272 N.W.2d 896 (Minn.1978). Thus, our decision to abolish the exceptions does not affect the extent to which a parent’s alleged misconduct may be involuntarily submitted for a jury’s consideration.

6 . That constitutional provision declares:

Redress of injuries or wrongs. Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.

7 . The argument is made that heavy reliance cannot be placed on homeowner’s and renter’s liability insurance because it is not required by statute, as is motor vehicle insurance. This assertion ignores the fact that at the time the Silesky case was decided, automobile insurance coverage was not compulsory, but yet the Sile-sky court found such insurance to be a compelling consideration. Similarly, although homeowner’s and renter’s liability insurance is not statutorily mandated, such coverage, which is unquestionably quite common, is a proper and persuasive factor to be relied upon in reaching our decision.

8 . The Baudette court stated: “[T]he social gain of providing tangible financial protection for those whom an insured wrongdoer ordinarily has the most natural motive to protect transcends the more intangible social loss of impairing the integrity of the family relationship.” 285 Minn. 371, 173 N.W.2d 419.

9 . We note that our complete abrogation of parental immunity will not subject parents to suit for negligent child rearing. Such claims of improper parenting are not actionable on public policy grounds. See, e. g., Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978).