WRIGHT
v.
WRIGHT
Docket No. 71625.
Michigan Court of Appeals.
Decided April 23, 1984.Rensberry, Kaufman, Nelson & Petruska, P.C. (by Robert K. Kaufman), for plaintiffs.
Walton, Smith, Phillips & Dixon, P.C. (by Geoff G. Smith), for defendant.
Before: ALLEN, P.J., and R.M. MAHER and R.H. BELL,[*] JJ.
PER CURIAM.
Plaintiffs appeal as of right a May 9, 1983, order of the circuit court for Benzie County granting defendant's motion for summary judgment under GCR 1963, 117.2(1). The order was issued pursuant to the trial court's written opinion filed April 29, 1983, in which the court ruled that while a parent can be held liable for negligence toward his own child, no liability attaches where the claim is based on negligent parental supervision. Plumley v Klein, 388 Mich. 1; 199 NW2d 169 (1972). The trial court ruled:
"Viewing the facts and circumstances of this case, the court finds that the parents in the case, defendant Harry Wright and plaintiff Patricia Wright, may have been guilty of poor parental supervision which resulted in the accident and injuries to their daughter, Shirley Michelle Wright, but that negligent parental supervision is not actionable under the law of the State of Michigan and summary judgment should be, and is hereby granted against plaintiffs Patricia Wright, as parent and natural guardian of Shirley Michelle *803 Wright, and Roy M. Benaway, conservator of Shirley Michelle Wright, a minor child."
Patricia Wright, the natural mother of Shirley Michelle Wright, brings this suit in negligence against Harry Wright, father of Shirley, for injuries sustained by Shirley, who on May 20, 1979, at seven years of age, accidentally shot herself with a revolver she found in an automobile owned by Robert P. Jones. On May 20, 1979, Harry Wright took Shirley on a fishing trip with two friends, Robert P. Jones and Ronald Hughes. They all rode to the lake together in a 1979 Chevrolet owned and driven by Jones. While fishing, Shirley fell asleep in the boat. Upon return to shore, Harry Wright put Shirley in the back seat of the Chevrolet. Shirley remained asleep for most of the return trip to the motel. During the trip, Jones showed Wright a .38 caliber revolver and told him it was loaded. He explained he took the gun for protection against poisonous snakes which might be encountered on a fishing trip. Wright looked at the gun, replaced it in its holster and put it back on the front seat.
Upon arrival at the motel the three men and Shirley exited from the car. While the men worked on "buttoning up" the boat, Shirley threw rocks over a nearby bank. Both car doors were closed but not locked. After awhile, Shirley climbed back into the car. Some ten minutes later, Wright walked back to the car and discovered his daughter lying in the back seat with a wound in the cranial area.
On August 31, 1981, Patricia Wright, as parent, and Roy M. Benaway, as conservator of Shirley Wright, filed suit against defendant for negligence. Some time earlier plaintiffs had commenced a suit under the no-fault statute against Jones and Michigan *804 Mutual Insurance Company but summary judgment for those defendants had been entered by the trial court on the ground that damages did not arise out of the ownership, maintenance, or use of a motor vehicle.[1] On December 28, 1981, defendant responded to interrogatories filed by plaintiffs. The question and answer to interrogatory No. 16 is as follows:
"Question
"On May 20, 1979, did you believe that you were promoting proper parental discipline over Shirley Michelle Wright by placing a loaded revolver on the seat of Robert Jones' automobile?
"Answer
"I did not believe and do not believe that returning the handgun of Mr. Jones to the location where I found it had anything to do with the parental discipline of my daughter who, at that time, was riding in the back seat of the Jones automobile."
On March 18, 1982, defendant filed a motion for summary judgment for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), on the ground that the claim was barred by the doctrine of parental immunity. Plaintiffs filed a brief in opposition to the motion and on April 29, 1983, the trial court filed its written opinion granting the motion.
At the outset we quickly reject the claim that defendant's answers to interrogatories propounded to him, particularly defendant's answer to interrogatory No. 16, made it clear that defendant's daughter was not injured as a result of "an exercise of reasonable parental authority". We don't *805 believe the average layman is qualified to answer a question of law. Furthermore, interrogatory No. 16 was framed as a question of "parental discipline" and not as a question of parental authority. There is a vast difference, particularly to the ordinary layman, between authority and discipline. Quite naturally, defendant did not think he was "disciplining" his daughter when they returned to the motel and were busy putting away the boat.
Motions brought under GCR 1963, 117.2(1) are to be decided on the pleadings alone. Cooke Contracting Co v Dep't of State Highways # 2, 55 Mich. App. 479, 483; 223 NW2d 15 (1974). Interrogatories and depositions are not relevant when the motion is made under 117.2(1) rather than 117.2(3). Todd v Biglow, 51 Mich. App. 346, 349; 214 NW2d 733 (1974). For the foregoing reasons, we decline to find that the father's statements in response to interrogatories were in themselves admissions that his conduct on the afternoon in question was not an exercise of reasonable parental authority.
This brings us to the main issue in this case. Did the father's alleged negligent conduct constitute an exercise of reasonable parental authority over the child as that term was used by the Supreme Court in Plumley v Klein, 388 Mich. 1; 199 NW2d 169 (1972)? In Plumley the common-law doctrine of parental immunity from suits against the parent for negligence was abrogated, subject to two exceptions:
A child may maintain a lawsuit against his parents 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) *806 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." 388 Mich. 1, 8.
Defendant argues that his conduct on the day of the accident was not negligent but, even if negligent, that it falls within the first exception noted in Plumley. Defendant also contends the instant case is similar to and controlled by this Court's decision in Paige v Bing Construction Co, 61 Mich. App. 480; 233 NW2d 46 (1975). Plaintiffs argue that what is "reasonable parental authority" is always a jury question and that Paige was wrongly decided. We agree with defendant.
Bearing in mind that motions for summary judgment under GCR 1963, 117.2(1) are to be decided on the pleadings alone, we turn to the pleadings to determine whether defendant Wright's actions fall within the Plumley exception. Paragraphs 1 through 8 of the complaint set forth the facts as summarized earlier in this opinion. Paragraph 9 of the complaint then alleges that the injuries suffered by Shirley were the proximate result of Harry Wright's negligence as follows:
"(i) Harry Wright then and there left her unattended inside the said automobile where, as he well knew, there was a loaded revolver;
"(ii) Harry Wright failed to warn her not to handle the said revolver;
"(iii) Harry Wright failed to remove or unload the said revolver;
"(iv) Harry Wright failed to lock the said revolver into the glove compartment of the said automoblie."
No matter how much plaintiffs claim to the contrary, ¶ 9 of the complaint can only be construed as an action for negligent parental supervision. *807 The conduct which the complaint lists as negligent is the father's conduct in overseeing his daughter on the day the accident occurred. Unlike cases falling outside of the parental supervision exception, this case does not involve the direct commission of a wrongful act. It was not the father who loaded the gun or placed the gun on the front seat. It was not the father's gun or his car. As was stated by Judge (now Justice) CAVANAGH in Paige, supra:
"According to Plumley, where the alleged negligent act involves 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 discipline is inextricably involved. The right to exercise authority over a child certainly includes the responsibility to supervise that child's behavior." 61 Mich. App. 480, 484. (Emphasis supplied.)
We find the instant situation similar to and controlled by McCallister v Sun Valley Pools, Inc, 100 Mich. App. 131; 298 NW2d 687 (1980). There, suit was commenced by plaintiff against his parents for injuries sustained when plaintiff, then 15 years of age, dove into the family swimming pool striking his head and neck against the bottom of the pool. Plaintiff claimed his parents were negligent in failing to post warnings, install safety *808 devices or take other steps to warn of the dangers of diving into the pool. The trial court granted summary judgment for defendants. On appeal this Court affirmed on grounds that:
"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." 100 Mich. App. 131, 139.
Like the gun in the instant case, the McCallister swimming pool was the dangerous instrumentality and the gravamen of the negligence was the failure of the parents to adequately warn or take steps to prevent potential injury. A similar decision was reached in Paige v Bing Construction Co, supra, where the child was injured when it fell into a man-made hole on defendant's construction site. There also, the Bing-made hole was the dangerous instrumentality and the alleged negligence of the parents was their failure to oversee (supervise) the child.
Citing Grodin v Grodin, 102 Mich. App. 396; 301 NW2d 869 (1980), plaintiffs argue that the question of what is "an exercise of reasonable parental authority" falling within the Plumley exceptions is a jury question. According to plaintiffs, the word "reasonable" per se makes the issue one of fact for the jury to decide. We disagree.
Grodin involved the commission of an allegedly dangerous act (the use of tetracycline by the mother) rather than the supervision or overseeing of a child. Furthermore, plaintiffs' argument, if applied to cases where the negligent act is the failure to reasonably supervise, is self-defeating. If *809 a suit against the parents for negligence is subject to an exception where the negligent act involves parental supervision, but the reasonableness of the exception (parental supervision) itself is a jury question, then the so-called exception is meaningless. Negligence is unreasonable conduct requiring a jury determination of whether the conduct is reasonable or unreasonable. If the exception itself must go to the jury on the question of reasonableness, the exception is emasculated. Under plaintiffs' theory summary judgment for defendants could never be granted under GCR 1963, 117.2(1) where the alleged negligence constituted inadequate parental supervision. This is contrary to this Court's holdings in Paige and McCallister, supra.
Affirmed. Costs to defendant.
R.M. MAHER, J. (concurring).
I concur separately to clarify my position in Grodin v Grodin, 102 Mich. App. 396; 301 NW2d 869 (1980), which plaintiffs cite for the proposition that the question of what is "an exercise of reasonable parental authority" is always a jury question.
I agree with the majority that plaintiffs' interpretation of the Supreme Court's decision in Plumley v Klein, 388 Mich. 1; 199 NW2d 169 (1972), would result in virtual elimination of the exceptions enumerated by the Supreme Court. The question of what constitutes an exercise of reasonable parental authority is only a question for the jury where reasonable minds would differ as to whether or not the allegedly tortious activity falls within one of the exceptions. In this case, the activity clearly constitutes negligent parental supervision. Since this Court had already held, as a matter of law, that negligent parental supervision falls within the first exception in Plumley ("an exercise of reasonable parental authority over the child"), *810 Paige v Bing Construction Co, 61 Mich. App. 480; 233 NW2d 46 (1975), the trial court properly granted summary judgment in favor of defendant. In such a case, the only issue is whether reasonable minds would differ on the question of whether the allegedly tortious activity constitutes negligent parental supervision. We agree with the trial court that no such difference of opinion would arise on these facts.
Grodin, supra, presented an entirely different factual situation. There, the issue before the trial court was not whether the parent's allegedly tortious activity fell within a clearly defined exception under Plumley, supra, but rather whether or not the activity was even negligent. This Court reversed the trial court's grant of summary judgment in favor of the parent because that order had precluded testimony on important factors which would determine whether or not the parent's actions had been negligent. In so doing, however, this Court quoted from this Court's opinion in Meyers v Robb, 82 Mich. App. 549, 554; 267 NW2d 450 (1978), lv den 403 Mich. 812 (1978), where the Court stated:
"The reasonableness of the risk of harm whether analyzed in terms of duty, proximate cause or specific standard of care turns on how the utility of the defendant's conduct is viewed in relation to the magnitude of the risk thereby created. Moning v Alfono, [400 Mich. 425; 254 NW2d 759 (1977)] supra. In any case where there might be a reasonable difference of opinion regarding how that balance should be resolved, the question is for the jury, subject to instructions as to the legal conclusion to be drawn from its determination." (Emphasis added.)
Thus, even in Grodin, the Court did not hold that the jury was always to decide whether or not allegedly tortious activity fell within one of the exceptions in Plumley.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] On January 27, 1982, this Court in a per curiam opinion affirmed the trial court's grant of summary judgment. Affirmance was made "under Ciaramitaro v State Farm Ins Co, 107 Mich. App. 68; 308 NW2d 661 (1981)".