Plaintiff-appellant, Christian Daniel McCallister, appeals from an order entered on August 6, 1979, granting summary judgment in favor of defendants-appellees Lorimer and Josee McCallister pursuant to GCR 1963, 117.2(1).
On May 24, 1975, plaintiff, then 15 years old, dove into the deep end of the family swimming pool located in the backyard of his home in Warren, Michigan. In the course of this dive, plaintiff struck the back of his head and neck against the bottom of the pool. As a result of this impact, plaintiff suffered permanent paralysis from the neck down.
On March 2, 1979, plaintiff filed a four-count complaint in Macomb County Circuit Court. Counts I and II of the complaint are not at issue in the present appeal.
In count III of the complaint, plaintiff alleged that defendants Lorimer and Josee McCallister, parents of the plaintiff, had certain duties to plaintiff,
In count IV, plaintiff alleged that defendant parents negligently and carelessly failed to eliminate the danger or take steps to protect children such as plaintiff from the danger represented by the swimming pool, in that defendants failed to post warnings, instruct plaintiff, install safety devices, or take any other steps to prevent other children residing in the general neighborhood from entering and using the pool or diving into the pool. Plaintiff prayed for five million dollars judgment against the defendant parents, jointly and severally.
On March 30, 1979, defendants Lorimer and Josee McCallister filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). Defendants, noting that plaintiff was their son, argued that plaintiff failed to state a cause of action:
"2. Each and every allegation of liability asserted against the defendant parents is barred by the doctrine of parental immunity because each and every such allegation alleges a negligent act which involves the exercise of reasonable parental supervision over the child or the exercise of reasonable discretion with respect to the provision of housing and other care for the child."
In their answer to the complaint, filed on July 5, 1979, defendants reiterated their contention of parental immunity.
On July 9, 1979, the trial court issued a written opinion, in which it held that the motion for summary judgment was properly founded, and granted summary judgment based on the parental immunity of plaintiff's parents. An order effecting the terms of that opinion was entered on August 6, 1979. Plaintiff now appeals from the above determination of the trial court.
Plaintiff raises but one issue in his appeal, contending that the trial court erred in granting summary judgment in favor of defendants pursuant to GCR 117.2(1) on the grounds that the allegations of liability asserted against the defendant parents were barred by the doctrine of parental immunity.
A motion under GCR 1963, 117.2(1) is to be tested by the pleadings alone. The motion tests the legal basis of the complaint, not whether it can be factually supported. Crowther v Ross Chemical & Manufacturing Co, 42 Mich.App. 426; 202 N.W.2d 577 (1972), inter alia. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Sullivan v The Thomas Organization, PC, 88 Mich.App. 77, 82; 276 N.W.2d 522 (1979). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, a motion made under this subrule should be denied. Staffney v Fireman's Fund Ins Co, 91 Mich.App. 745, 751; 284 N.W.2d 277 (1979).
Our Supreme Court determined in Elias v Collins, 237 Mich. 175, 177; 211 NW 88 (1926), that:
"It is a rule of the common law that a minor cannot
However, in Plumley v Klein, 388 Mich. 1, 3-4; 199 N.W.2d 169 (1972), the Court reconsidered the doctrine of intra-family immunity in light of intervening social, legislative, and judicial changes. The mother and her four children were killed in an automobile accident. The father and husband sued, alleging that the mother was negligent. On appeal, the Court addressed the specific issue of "whether the personal representative of deceased children may recover damages from the personal representative of the deceased mother under the wrongful death act (MCLA 600.2922; MSA 27A.2922) for ordinary negligence".
The Court, in reaching its decision, first noted that: "[a] number of our sister states who once recognized the above rule [of total immunity] have since abandoned it. Instead, they now recognize the right of a child to recover damages for injuries incurred as a result of negligent conduct on the part of the parent." Id., 5-6. The Court then cited the following recent decisions in other states as indicating that the modern trend is toward the elimination of intra-family immunity: Goller v White, 20 Wis.2d 402; 122 N.W.2d 193 (1963), Briere v Briere, 107 N.H. 432; 224 A.2d 588 (1966), Hebel v Hebel, 435 P.2d 8 (Alas, 1967), Silesky v Kelman, 281 Minn. 431; 161 N.W.2d 631 (1968), Gelbman v Gelbman, 23 N.Y.2d 434; 297 N.Y.S.2d 529 (1969), France v APA Transport Corp, 56 N.J. 500; 267 A.2d 490 (1970), Gibson v Gibson, 3 Cal.3d 914; 92 Cal.Rptr. 288; 479 P.2d 648 (1971), and Falco v Pados, 444 Pa. 372; 282 A.2d 351 (1971). Id., 5, fn 2.
The Court then noted that "[t]he Legislature also
"We are persuaded that the modern rule best serves the interests of justice and fairness to all concerned. The case of Elias v Collins, supra, which provides for intra-family tort immunity is overruled. 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." (Footnotes omitted.) Id., 8.
The Court finally noted that if a cause of action of negligent parental supervision is to be created, it should come from the Legislature and not the courts. Thus, the Court did not totally abrogate parental immunity. Instead, it reserved parental protection for negligence occurring in the exercise of parental supervision over the child and parental discretion in providing for food, clothing, housing, medical and dental services, and other care.
In Paige v Bing Construction Co, 61 Mich.App. 480; 233 N.W.2d 46 (1975), lv den 395 Mich. 751 (1975), this Court concluded that the first exception to the abrogation of parental immunity, the "parental authority" exception, does apply to bar a
"Accordingly to Plumley, where the alleged negligent act involved the exercise of reasonable parental authority over the child, the parents are immune from suit. While we note at the outset that this scheme is so general that it is difficult to apply the ambiguous exception to particular fact situations, we conclude that the first exception to the abrogation of parental immunity does apply so as to bar a claim of negligent parental supervision. A parent's exercise of authority over his or her child involves more than discipline. It includes the providing of instruction and education so that a child may be aware of dangers to his or her well being. We find it impossible to separate such general phenomena as authority and supervision. In order to adequately supervise a child, every parent knows that some amount of the discipline is inextricably involved. The right to exercise authority over a child certainly includes the responsibility to supervise that child's behavior." Id., 484.
"The unique Wisconsin rule [the rule adopted by the Michigan court in Plumley] has much wisdom to recommend it. It abolished parental immunity except in the area of parental functions. Parental functions are activities which directly relate to the parental duties of care and supervision of the child. Physical punishment does come within the scope of parental discipline. Maintenance of the home comes within the scope of parental care." (Emphasis added.)
As noted in Paige, supra, 484, this Court construed the first exception (parental authority) as including "the providing of instruction and education so that a child may be aware of dangers to his or her well being". We conclude that this first exception applies to the circumstances of the case at bar. The gravamen of plaintiff's pleadings can only be construed as an action for negligent parental supervision.
The Court in Paige specifically pointed out that a parent's exercise of parental authority includes the providing of instructions and education so that a child may be aware of dangers to his or her well being. In the case at hand, the decision to purchase, maintain, and instruct the family members as to the use of the family pool was within the management of family affairs. The alleged negligent acts and omissions of the defendants, which occurred three years after the pool was installed, involved an exercise of reasonable parental supervision over the child. Thus, the allegations set forth in plaintiff's complaint fall squarely within the first exception of Plumley, as explicated in Paige.
Arguably, the act of having and maintaining a
Finally, plaintiff asserts that the presence of insurance coverage takes the instant case outside the ambit of both the Paige holding and the exceptions embodied in Plumley. Plaintiff argues that these exceptions are designed to minimize judicial interference with the parent-child relationship and that, where insurance covers any judicial award which the child might recover, the policy underlying these exceptions does not exist. In support of his argument, plaintiff cites authority from foreign jurisdictions. However, these cases do not provide a basis for circumventing the rule set forth in
"Incidentally a special but subsidiary point may be noted. As the Supreme Courts of our sister states Wisconsin and Minnesota have noted, the widespread utilization of liability insurance suggested that intra-family lawsuits would seldom upset the tranquility of the family. Writing for the Wisconsin Supreme Court, Justice Currie stated:
"`Nevertheless, we consider the wide prevalence of liability insurance in personal-injury actions a proper element to be considered in making the policy decision of whether to abrogate parental immunity in negligence actions. This is because in a great majority of such actions, where such immunity has been abolished, the existence of insurance tends to negate any possible disruption of family harmony and discipline.' Goller v White, 20 Wis.2d 402, 412; 122 N.W.2d 193, 197 (1963).
"Instead, an injured family member will merely be able to recover from an insurance company for injuries against which the company has been paid to insure." (Footnote omitted.) Plumley, supra, 7-8.
In spite of this recognition that insurance is a relevant factor under certain circumstances, the Court, nevertheless, held that parental immunity should continue to exist where the alleged negligent act involves an exercise of reasonable parental authority or an exercise of parental discretion. Thus, the Plumley Court implicitly rejected the contention that the existence of insurance coverage should influence the outcome of those cases which involve the exceptions to the abrogation of parental immunity.
In addition, Michigan courts have consistently recognized that the fact of insurance or noninsurance should not have the effect of creating a cause of action where none existed before; the injection of insurance coverage is not only an immaterial issue but has also been deemed to be highly prejudicial. See Benmark v Steffen, 374 Mich. 155; 132 N.W.2d 48 (1965), Darr v Buckley, 355 Mich. 392; 94 N.W.2d 837 (1959), Felice v Weinman, 372 Mich. 278; 126 N.W.2d 107 (1964), Rumptz v Leahey, 26 Mich.App. 438; 182 N.W.2d 614 (1970). In light of this strict adherence to the rule that insurance does not create liability, the existence of insurance in the instant case should not be employed as a controlling factor in determining the liability of the defendant-parents.
So too, policy considerations preclude the availability of insurance coverage from becoming justification for the imposition of judgment against the
"Besides our construction of the Plumley exceptions, a cause of action for negligent parental supervision, without a legislative standard, poses problems from a common sense point of view. Both Elbert v Saginaw, 363 Mich. 463; 109 N.W.2d 879 (1961), and Lapasinskas v Quick, 17 Mich.App. 733; 170 N.W.2d 318 (1969), rejected the injection of parental fault onto the record of a case against parents. Elbert took judicial notice of the impossibility of a parent knowing what a child is doing at all times — despite utmost vigilance. 363 Mich. 463, 480.
"Parents have a social and moral obligation to provide maintenance and guidance for their children, and the state benefits from their meeting this obligation. The law does step into this private relationship where the child's well-being is seriously affected. See MCLA 750.135, 750.136, 750.161 et seq.; MSA 28.330, 28.331, 28.358 et seq. Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. Also, different cultural, educational and financial conditions affect the manner in which different parents supervise their children. Allowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second-guess a parent's management of family affairs considerably beyond these statutory protections.
Finally, we note that, in defendants' answers to plaintiff's first set of interrogatories, it was disclosed that defendants did indeed possess insurance which arguably would apply to the accident which occurred, which policy had a liability limitation of $100,000. As discussed previously, the ad damnum clause following counts III and IV of plaintiff's complaint prayed for an award of damages in the amount of five million dollars against defendants jointly and severally.
Thus, even assuming that defendants' could exact contribution pro rata from the remaining defendants, if the amount prayed for was awarded plaintiff, defendants would minimally be exposed to personal liability for which no insurance coverage existed in an amount approaching one million dollars. Plaintiff's argument that family felicity would not be disturbed because of the presence of insurance is chimerical in light of this fact. Apropos is the following quotation from the dissenting opinion of Justice BLACK in Plumley, supra, 13:
"In a word, it is suggested by way of a polite challenge that if the Court is determined to go ahead willy-nilly, the Justices ought first to say that son now may sue father, and daughter now may sue mother, only if the defendant parent is actually and adequately insured
For all the foregoing reasons, we conclude that the trial court properly granted summary judgment in favor of defendants. Accordingly, we affirm the decision in the court below.
Affirmed. Costs to defendants.