If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
HONESTI PRICE, Minor, by Next Friend UNPUBLISHED
ROSALYN CLAYTON, March 31, 2022
Plaintiff,
v No. 355712
Wayne Circuit Court
COUNTRY HOUSE APARTMENTS, LLC, LC No. 20-000116-NO
Defendant,
and
COUNTRY HOUSE HOLDINGS, LLC,
Defendant/Third-Party Plaintiff-
Appellee,
and
ROSALYN CLAYTON and KEVIN PRICE,
Third-Party Defendants-Appellants.
Before: GADOLA, P.J., and BORRELLO and M. J. KELLY, JJ.
PER CURIAM.
In this interlocutory appeal, third-party defendants, Kevin Price and Rosalyn Clayton,
appeal by leave granted the order of the trial court denying in part their motion for summary
disposition under MCR 2.116(C)(8) of defendant/third-party plaintiff, Country House Holdings,
LLC’s, third-party complaint. We affirm in part, reverse in part, and remand for further
proceedings.
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I. FACTS
Country House Holdings, LLC (defendant), owns1 a residential apartment building in the
city of Detroit. In 2015, Kevin Price and Rosalyn Clayton rented from defendant a second-floor
apartment in the building, and Price and Clayton lived in the apartment together with their children.
On September 17, 2015, the couple’s two-year-old daughter, plaintiff, Honesti Price,2 was playing
with her siblings on the second-floor walkway outside the family’s apartment when she fell
through a railing; she fell 10 feet to the cement below, allegedly sustaining serious head injuries.
At the time of the incident, Clayton allegedly was taking a shower and had relinquished care of
the children to Price, who allegedly was resting in bed after work while the children played on the
walkway.
Plaintiff initiated this lawsuit alleging that defendant’s negligence caused her injuries and
that defendant breached its statutory duty to keep the premises in reasonable repair and fit for its
intended use.3 Plaintiff alleged that defendant knew or should have known of the unsafe condition
of the walkway and failed to make it safe, resulting in plaintiff’s injuries. The complaint further
alleged that in the weeks before the incident, Price and Clayton notified defendant that the balcony
railing needed repair but that defendant failed to repair the railing.
Defendant thereafter filed a third-party complaint4 against Price and Clayton, alleging
parental negligence, negligence, indemnity, and contribution, and asserting that Price and Clayton
were negligent by failing to properly supervise plaintiff. Defendant further alleged that Price and
Clayton failed to report the dangerous condition of the walkway to defendant, and that Price, whom
defendant employed as a maintenance worker, contravened his duty to defendant by failing to
remedy the defective condition. Defendant sought indemnification and contribution from Price
and Clayton for any judgment against defendant in the primary litigation.
Price and Clayton moved for summary disposition of the third-party complaint under MCR
2.116(C)(8), contending that defendant’s theory of liability is that Price and Clayton failed in their
parental duty to adequately supervise plaintiff and that such liability is barred by parental
immunity. After a hearing, the trial court denied the motion for summary disposition of Counts I,
II, and III of the third-party complaint that alleged parental negligence, negligence, and
indemnification, but granted summary disposition of Count IV of the third-party complaint
alleging contribution, which the trial court determined was not a valid separate claim. 5 The trial
court observed that under Michigan law, a child may not maintain a lawsuit against his or her
1
In its answer to plaintiff’s complaint, defendant Country House Holdings, LLC asserts that it is
the sole owner of the premises in question.
2
Plaintiff, Honesti Price, is a minor and sues through her next friend, Rosalyn Clayton.
3
Although the complaint is not entirely clear, plaintiff appears to allege both common law
premises liability and statutory liability under MCL 554.139(1).
4
Defendant also filed a notice of nonparty at fault under MCR 600.2957 and MCR 2.112(K).
5
Defendant states in its brief on appeal that it does not dispute the trial court’s dismissal of its
contribution claim.
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parent for injuries suffered as a result of the alleged ordinary negligence of the parent if the alleged
negligence involved an exercise of reasonable parental authority over the child. See Plumley v
Klein, 388 Mich 1, 8; 199 NW2d 169 (1972). However, the trial court then found that defendant’s
allegations that Price and Clayton owed plaintiff a duty of reasonable supervision “fit within the
first of the Plumley exceptions to parental immunity.” The trial court concluded that Price and
Clayton therefore were subject to potential liability for the alleged breach of their duty to plaintiff.
The trial court reasoned:
Third-party Defendants provide no authority that prevents a defendant from filing
a third-party complaint after providing notice of nonparty at fault. The only
requirement is that the Court find, in allowing a negligence claim to go forward,
that there is a legal duty. Romain v Frankenmuth Mut Ins Co, 483 Mich 18, 22;
762 NW2d 911 (2009). “Without owing a duty to the injured party, the “negligent”
actor could not have proximately caused the injury and could not be at “fault” for
purposes of the comparative fault statutes.” Id.
As indicated above, the Court finds that the parents here do owe a duty to
exercise authority over their child, which involves more than discipline and
includes providing instruction and education so that their child may be aware of
dangers to her well-being. . . .
Furthermore, under the fair share liability approach set forth in
comparative-fault statutes, a fact-finder must allocate fault among all responsible
tortfeasors, regardless of whether the tortfeasor was or could have been named as a
party to the action, and each tortfeasor need not pay damages in an amount greater
than his or her allocated percentage of fault. . . .
This Court thereafter granted Price’s and Clayton’s application for leave to appeal the order of the
trial court. Price v Country House Apartments, LLC, unpublished order of the Court of Appeals,
entered March 31, 2021 (Docket No. 355712).
II. DISCUSSION
A. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A
motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim;
summary disposition under MCR 2.116(C)(8) is warranted only when the claim is so
unenforceable as a matter of law that no factual development could justify recovery. Id. at 159-
160. When reviewing a motion for summary disposition under MCR 2.116(C)(8), we consider the
motion based on the pleadings alone and accept all factual allegations as true. Id. at 160.
B. NONPARTY AT FAULT
In Michigan, when a case involves multiple tortfeasors, the law imposes fair-share liability;
each tortfeasor is liable for only the portion of the total award of damages that reflects that
tortfeasor’s apportionment of fault. Goodwin v Northwest Mich Fair Ass’n, 325 Mich App 129,
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139; 923 NW2d 894 (2018). The principles of fair-share liability are set forth in the comparative-
fault statutes, being MCL 600.2956, MCL 600.2957, and MCL 600.6304. Goodwin, 325 Mich
App at 139. MCL 600.2957 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death, the liability of each person
shall be allocated under this section by the trier of fact and, subject to section 6304
[MCL 600.6304], in direct proportion to the person’s percentage of fault. In
assessing percentages of fault under this subsection, the trier of fact shall consider
the fault of each person, regardless of whether the person is, or could have been,
named as a party to the action.
* * *
(3) Sections 2956 to 2960 [MCL 600.2956 to MCL 600.2960] do not
eliminate or diminish a defense or immunity that currently exists, except as
expressly provided in those sections. Assessments of percentages of fault for
nonparties are used only to accurately determine the fault of named parties. If fault
is assessed against a nonparty, a finding of fault does not subject the nonparty to
liability in that action and shall not be introduced as evidence of liability in another
action. [Emphasis added.]
MCL 600.6304 provides:
(1) In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death involving fault of more than 1
person, including third-party defendants and nonparties, the court, unless otherwise
agreed by all parties to the action, shall instruct the jury to answer special
interrogatories or, if there is no jury, shall make findings indicating both of the
following:
(a) The total amount of each plaintiff’s damages.
(b) The percentage of the total fault of all persons that contributed to the
death or injury, including each plaintiff and each person released from liability
under section 2925d [MCL 600.2925d], regardless of whether the person was or
could have been named as a party to the action.
* * *
(4) Liability in an action to which this section applies is several only and
not joint. Except as otherwise provided in subsection (6), a person shall not be
required to pay damages in an amount greater than his or her percentage of fault as
found under subsection (1) . . .
* * *
(8) As used in this section, “fault” includes an act, an omission, conduct,
including intentional conduct, a breach of warranty, or a breach of a legal duty, or
any conduct that could give rise to the imposition of strict liability, that is a
proximate cause of damage sustained by a party. [Emphasis added.]
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Thus, where more than one tortfeasor is identified, the fact-finder must determine the
allocation of fault among the responsible tortfeasors, regardless of whether a tortfeasor was or
could have been named as a party to the action, and no tortfeasor can be required to pay damages
in an amount greater than his or her percentage of fault. See Goodwin, 325 Mich App at 141.
However, fault may not be allocated to a person without proof that the person owed a legal duty
to the injured party. Id. “Without owing a duty to the injured party, the ‘negligent’ actor could
not have proximately caused the injury and could not be at ‘fault’ for purposes of the comparative
fault statutes.” Romain v Frankenmuth Mut Ins Co, 483 Mich 18, 22; 762 NW2d 911 (2009).
C. PARENTAL IMMUNITY
In this case, defendant filed a notice of nonparty at fault under MCR 600.2957 and MCR
2.112(K),6 asserting that Price and Clayton breached their parental duty to supervise plaintiff.
However, defendant also filed a third-party complaint against Price and Clayton, alleging parental
negligence, negligence, indemnification, and contribution. Price and Clayton contend that the
liability alleged in defendant’s third-party complaint is barred by parental immunity and that the
trial court therefore erred by denying their motion for summary disposition. We agree.
Under Michigan law, “parents have a duty to supervise their own children, or determine
that their children are of sufficient age and maturity to no longer need such supervision.” Goodwin,
325 Mich App at 142 (quotation marks and citations omitted). The parent’s duty to supervise the
child extends to exercising reasonable care for the safety of the child while on the property of
another. Id. at 143. But “[a]lthough parents undoubtedly have a duty to supervise their children,
the law generally does not allow children to recover damages from their parents for breach of this
duty.” Id.
At common law, a minor was not permitted to sue his or her parents in tort. Id. When the
Michigan Supreme Court largely abolished intrafamily tort immunity in Plumley, 388 Mich at 8,
it retained two exceptions. Parental immunity remains (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.” Id. A claim that a parent
was negligent in supervising his or her child falls within the first exception, with the result that a
child may not sue his or her parent for negligent supervision because the parent has immunity in
this regard. Goodwin, 325 Mich App at 144.
To summarize, Plumley generally abolished parental immunity, with exceptions identified
in Plumley in which parental immunity still exists, such as when a parent is alleged to have
negligently supervised his or her child. Price and Clayton are thus correct that defendant’s
allegations that they are liable for negligently supervising plaintiff fall within the first Plumley
exception to the general Plumley rule of nonimmunity, meaning that they are immune from liability
for alleged negligence in supervising plaintiff. See id. Although the trial court correctly found
that defendant’s allegations that Price and Clayton negligently supervised plaintiff fall within the
6
MCR 2.112(K)(2) provides that “[n]otwithstanding MCL 600.6304, the trier of fact shall not
assess the fault of a nonparty unless notice has been given as provided in this subrule.”
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first Plumley exception, the trial court incorrectly concluded that falling within the Plumley
exception removed the allegations from parental immunity, when in fact falling within the
exception placed the claim within the genre of claims barred by parental immunity. In so
concluding, the trial court conflated the question whether parental immunity barred defendant’s
tort action against Price and Clayton for negligent supervision of plaintiff with the inquiry whether
a parent has a duty to supervise his or her child. Because Price and Clayton are immune from suit
for their alleged negligent supervision of plaintiff regardless of their duty to plaintiff, the trial court
erred by denying their motion for summary disposition of defendant’s third-party complaint. See
Goodwin, 325 Mich App at 144.
That is not to say that parents cannot be identified as nonparties at fault. Under the
comparative-fault statutes, which distinguish between immunity and duty, “a person entitled to
parental immunity may nevertheless be named as a nonparty at fault and allocated fault for
purposes of determining a defendant’s liability under the comparative-fault statutes.” Id. at 145.
As discussed, the allocation of fault under the comparative-fault statutes is the mechanism by
which a defendant’s and other tortfeasors’ allocation of fault, if any, can be determined, regardless
of whether the other identified tortfeasors could have been named as a party or whether they are
instead immune from liability. Id. But contrary to the trial court’s determination, the fact that
Price and Clayton owe a parental duty to their child that could subject them to allocation of fault
does not affect their parental immunity from suit for alleged negligent supervision of their child.
On appeal, defendant agrees that parental immunity bars plaintiff from holding Price and
Clayton liable for her injuries under a theory of negligent supervision. Defendant argues, however,
that parental immunity does not preclude another party, such as defendant, from holding Price and
Clayton liable for plaintiff’s injuries. We disagree. To establish a prima facie case of negligence,
a plaintiff must prove that (1) the defendant owed the plaintiff a legal duty, (2) the defendant
breached that duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach proximately
caused the plaintiff’s damages. Hill v Sears, Roebuck & Co, 492 Mich 651, 660; 822 NW2d 190
(2012). The element of duty is the legal obligation that arises from the relationship between the
parties. Estate of Livings v Sage’s Investment Group, LLC, 507 Mich 328, 337; 968 NW2d 397
(2021). Duty generally arises either by statute, contract, or under common law. Hill, 492 Mich at
661.
In this case, the only duty defendant’s third-party complaint identifies7 is the duty Price
and Clayton owed to plaintiff as parents to properly supervise her. Defendant does not identify a
7
Although defendant also asserts that Price breached his duty as its employee to prevent the
accident by repairing the railing on his own initiative, the third-party complaint does not set forth
a prima facie case in this regard; that is, the third-party complaint does not identify Price’s duty to
defendant as an employee to prevent the accident, breach of that duty, or causation of damages as
a result of Price’s alleged breach of duty to defendant. Rather, the overriding assertion of the third-
party complaint is that any damages sustained by plaintiff resulted from Price and Clayton
breaching their duty to adequately supervise her. We observe that the third-party complaint does
not name other employees who failed to eliminate the alleged hazard; if Price were not also the
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duty that Price and Clayton owed to defendant. Although defendant emphasizes on appeal that its
third-party complaint is not merely one for contribution or indemnification, the overarching
allegation of the third-party complaint is that plaintiff’s injuries are the result of parental
negligence by Price and Clayton, who therefore should be held liable for plaintiff’s damages in
lieu of defendant. Because defendant did not allege in its third-party complaint a duty owed apart
from Price and Clayton’s parental duty to plaintiff, defendant’s third-party complaint fails to state
a claim; Price and Clayton could not breach a duty to defendant that they did not owe. See Fultz
v Union-Commerce Assoc, 470 Mich 460, 469; 683 NW2d 587 (2004).
D. INDEMNIFICATION AND CONTRIBUTION
In its third-party complaint, defendant also alleged indemnification and contribution.
“Generally, indemnification is an equitable doctrine that shifts the entire burden of judgment from
one tortfeasor who has been compelled to pay it, to another whose active negligence is the primary
cause of the harm,” St. Luke’s Hosp v Giertz, 458 Mich 448, 453; 581 NW2d 665 (1998), and is
intended only to make a party whole again who has been held vicariously liable to another through
no fault of his or her own. Botsford Continuing Care Corp v Intelistaf Healthcare, Inc, 292 Mich
App 51, 62; 807 NW2d 354 (2011). A party seeking indemnity must be free from any active or
causal negligence. Id. at 63. Thus, common-law indemnification “cannot lie where the plaintiff
was even .01 percent actively at fault.” St. Luke’s Hosp, 458 Mich at 456. Whether a party was
actively liable is determined by the complaint of the primary plaintiff. Botsford, 292 Mich App at
63.
“Contribution is a statutory right that exists between two or more tortfeasors liable for the
same injury or wrongful death.” Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 188;
475 NW2d 854 (1991), citing MCL 600.2925a. Because a child cannot sue his or her parent for
negligent supervision, the parent cannot be jointly or severally liable with another tortfeasor for
the child’s damages arising from the negligence. Id. at 189. That is not to say that a parent cannot
be named as a nonparty at fault; as discussed, under the comparative-fault statutes, where there is
a duty a parent may be named as a nonparty at fault regardless of whether immunity would
preclude the parent from being named as a party. Goodwin, 325 Mich at 145-146. However,
because a child cannot sue his parents for negligent supervision, the parent cannot be held jointly
or severally liable with another tortfeasor based upon negligent supervision of the child. Bryne,
190 Mich App at 189. Because defendant has not stated a prima facie case against Price and
Clayton for the underlying claim of negligence, defendant has not set forth a valid claim for
indemnification or contribution.
We affirm the trial court’s order granting Price and Clayton summary disposition of Count
IV of defendant’s third-party complaint seeking contribution. We reverse the trial court’s order
denying Price and Clayton summary disposition of Counts I, II, and III of defendant’s complaint
alleging parental negligence, negligence, and seeking indemnification. We remand to the trial
father of the person injured it appears unlikely that he would have been named as a third-party
defendant.
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court for entry of an order dismissing defendant’s third-party complaint. We do not retain
jurisdiction.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
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