Defendant and third-party plaintiff, Quality Mills, Incorporated, appeals as of right from the order of the Wayne Circuit Court granting summary judgment under GCR 1963, 117.2(1) to third-party defendant, Sheila Ann Carey. We reverse.
According to the third-party complaint, Sheila Ann Carey is the natural mother of Kelly Ann Carey. Kelly was less than four months old on October 6, 1982. On that day, Sheila Carey placed Kelly Ann in an infant seat on a counter top in close proximity to a kitchen range. A burner on the kitchen range was turned on by Sheila Carey. The burner on the range ignited a blanket, which in turn ignited a shirt worn by Kelly Ann, resulting in burn injuries to the infant.
On November 21, 1983, Thomas J. Carey, Kelly Ann's natural father, filed suit in circuit court alleging negligence, a breach of express and implied warranties and product liability. Quality Mills, as manufacturer of the shirt worn by Kelly Ann, was added as a party defendant by order of
Third-party defendant, Sheila Ann Carey, responded with a motion for summary judgment under GCR 1963, 117.2(1), citing the doctrine of intrafamily tort immunity. As noted supra, the trial court granted that motion. The trial court reasoned that the alleged acts of negligence on the part of Sheila Ann Carey were entitled to tort immunity in that they involved the care of the child.
In Plumley v Klein, 388 Mich. 1; 199 N.W.2d 169 (1972), our Supreme Court abrogated the doctrine of intrafamily tort immunity as set forth in Elias v Collins, 237 Mich. 175; 211 NW 88 (1926). The Plumley Court held:
Three years after Plumley, in Paige v Bing Construction Co, 61 Mich.App. 480; 233 N.W.2d 46 (1975), lv den 395 Mich. 751 (1975), the parents of a 2 1/2-year-old child sued the defendant construction company for the wrongful death of the child who fell into a man-made hole on the defendant's construction site. Bing Construction responded with a third-party complaint alleging negligent supervision on the part of the parents and the parents countered with a motion for summary judgment. This Court upheld the trial court's order of summary judgment, reasoning that negligent parental supervision falls within the Plumley exceptions and is therefore entitled to immunity under Michigan law.
This Court has consistently followed Paige in a number of subsequent decisions involving claims of negligent parental supervision. However, in each of these decisions, no separate and affirmative act of negligence outside of the Plumley exceptions was pled.
In Hush v Devilbiss Co, 77 Mich.App. 639; 259 N.W.2d 170 (1977), a fourteen-month-old child was injured when a vaporizer kept on a buffet in the living room spilled as the child attempted to open the drawers of the buffet to get at the children's
In McCallister v Sun Valley Pools, Inc, 100 Mich.App. 131; 298 N.W.2d 687 (1980), the plaintiff minor child was injured in a dive into the deep end of the family swimming pool located in the backyard of the family home. The minor child alleged various acts of negligence on the part of his parents, including a failure to investigate the dangers of the pool, failure to post warnings or other safety devices and failure to instruct him on the safe use of the pool. This Court held that those claims fell within the immunity of the Plumley exceptions in that the gravamen of the complaint was negligent supervision. However, the McCallister panel also explained:
In Wright v Wright, 134 Mich.App. 800; 351 N.W.2d 868 (1984), a seven-year-old child received injuries as a result of self-inflicted gunshot wounds after climbing into an unlocked car in which a loaded gun had been left. The car was owned by a friend of the child's father with whom the child and father had traveled on a fishing trip. The mother and conservator for the child sued the father in negligence. This Court held that the complaint alleged negligent supervision and therefore failed to state a cause of action under the Michigan law of intrafamily tort immunity. We specifically noted:
In Mayberry v Pryor, 134 Mich.App. 826; 352 N.W.2d 322 (1984), rev'd on other grounds 422 Mich. 579; 374 N.W.2d 683 (1985), the plaintiff's four-year-old child sued his foster parents in negligence for injuries incurred as a result of a dog bite when the child was left alone and unattended on the front porch or in the yard of the residence of defendants Pryor. As in Hush, the thrust of the Court's opinion was directed to the issue whether intrafamily tort immunity should be extended to foster parents acting in loco parentis.
Finally, in Haddrill v Hamon, 149 Mich.App. 702; 386 N.W.2d 643 (1986), a twelve-year-old child was injured while riding a 100 cc dirt bike purchased by his father. The child sued his father, alleging negligent entrustment and failure to supervise. We held:
We hold that the third-party complaint in this case does allege, in the words of the Plumley Court, "ordinary negligence of the parent." Unlike in Paige, Hush, Wright and Mayberry, the direct commission of a wrongful act, placing the child in close proximity and turning on an electric range burner, has been pled in this action. Thus, we hold that the third-party plaintiff's claim is not necessarily one for negligent parental supervision. To construe the third-party plaintiff's pleadings as an allegation of negligent supervision would allow the exception nurtured by this Court to wholly consume the general rule of ordinary negligence set forth by our Supreme Court in Plumley. That, we decline to do.
We instead find the instant case to be more closely analogous to Grodin v Grodin, 102 Mich.App. 396; 301 N.W.2d 869 (1980), lv den 412 Mich. 867 (1981), in which the child pled negligence on the part of his mother in taking Tetracycline during the course of his gestation. However, in Grodin, we held that reasonable minds could differ on the question whether the allegedly tortious activity constituted negligence.
As we have previously held:
We do not find the third-party claim to be so clearly unenforceable as a matter of law that no factual development could justify a right to contribution.
CYNAR, J., concurs in the result only.