Anderson v. Stream

• Decision Date: 08 September 1980
• Docket Number: 50644.,No. 49520,49520
• Parties: Breeanna Lynn ANDERSON, a minor, by her father and natural guardian, Edward F. Anderson and Edward F. Anderson, Individually, Plaintiff, v. Edna STREAM and Martin Stream, defendants and third party plaintiffs, Appellants, v. Edward F. ANDERSON and Mrs. Edward F. Anderson, third party defendants, Respondents. Michael NUESSLE, a Minor, by Loretta Nuessle, His Guardian Ad Litem, Appellant, v. James NUESSLE, Respondent.
• Court: Minnesota Supreme Court

295 N.W.2d 595 (1980)

Breeanna Lynn ANDERSON, a minor, by her father and natural guardian, Edward F. Anderson and Edward F. Anderson, Individually, Plaintiff, v. Edna STREAM and Martin Stream, defendants and third party plaintiffs, Appellants, v. Edward F. ANDERSON and Mrs. Edward F. Anderson, third party defendants, Respondents.

Michael NUESSLE, a Minor, by Loretta Nuessle, His Guardian Ad Litem, Appellant, v. James NUESSLE, Respondent.

Nos. 49520, 50644.

Supreme Court of Minnesota.

July 3, 1980.

Rehearings Denied September 8, 1980.

Cousineau, McGuire, Shaughnessy & Anderson and Barbara A. Burke, Minneapolis, for Stream.

Murnane, Murnane, Conlin & White and Steven J. Kirsch, St. Paul, for James L. Nuessle.

Reding & Votel and James A. Reding, St. Paul, for Anderson.

Dorfman, Goff & Hauge and Donald E. Holly, Minneapolis, for Michael Nuessle.

Heard before YETKA, SCOTT, and WAHL, and considered and decided by the court en banc (Anderson v. Stream v. Anderson, Case No. 49520); considered and decided by the court en banc without oral argument (Nuessle v. Nuessle, Case No. 50644).

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, Breeanna, 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, Breeanna 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 against 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 common 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, "Micker." 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 Silesky 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...