Cole v. Sears Roebuck & Co., 318

• Decision Date: 26 June 1970
• Docket Number: No. 318,318
• Citation: 177 N.W.2d 866,47 Wis.2d 629
• Parties: Jeffrey COLE, a minor, by his gdn. ad litem, Plaintiff, John W. Cole, Plaintiff-Appellant, v. SEARS ROEBUCK & CO., Defendant, Ronald B. Willer et al., Defendants and Third-Party Respondents, Elayne Cole, Third-Payty Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 866

177 N.W.2d 866

47 Wis.2d 629

Jeffrey COLE, a minor, by his gdn. ad litem, Plaintiff John W. Cole, Plaintiff-Appellant, v. SEARS ROEBUCK & CO., Defendant Ronald B. Willer et al., Defendants and Third-Party Respondents Elayne Cole, Third-Payty Defendant-Appellant.

No. 318.

Supreme Court of Wisconsin.

June 26, 1970.

This is an appeal from an order over-ruling demurrers to a counterclaim and third-party complaint.

The complaint alleges that Jeffrey Cole, a minor born on May 21, 1965, was injured on September 24, 1967, while on the premises of defendants and third-party respondents, Ronald B. Willer and Karen Willer, at N 92, W 17320 Forest Drive, Menomonee Falls, Wisconsin. Jeffrey lived with his parents, plaintiff-appellant, John W. Cole, and third-party defendant-appellant, Elayne Cole. The complaint alleges that Jeffrey played at frequent intervals with the Willer's children in the Willer's back yard, wherein there was a swing set purchased by Ronald Willer from defendant, Sears Roebuck & Company; and that the swing set consisted of two swings and two gliders. In paragraph five of the complaint, it is alleged:

'* * * that one of the said gliders was equipped with flooring and was so designed and manufactured so as to cause an extension of tubing to protrude several inches further than the back seat and rest of the glider on each such chair and on either side of said glider; that such protruding tubing was not equipped or designed with any protective device; that such protruding tubing was curved in outward and upward angle and style which upon the forward motion of the glider did constitute an unreasonable and unnecessary danger to persons or objects within the vicinity of such swing set.'

Paragraph six of the complaint alleges:

'That said swing set was inherently dangerous to users and observers of such device in its original design and manufacture; that, on information and belief, such protruding tubing previously described was at its respective ends open, hollow without protective covering of any kind at its sharp end points; that the corporate defendant at the time of sale knew, or should have known, in the ordinary course of its business, that the aforedescribed swing set would be for the primary use of children of tender age and constituted an unreasonable danger.'

Jeffrey was struck in and about his right eye by the alleged unprotected tubular extension of said swing set.

The defendants-respondents, Mr. and Mrs. Willer, impleaded Jeffrey's mother, Elayne Cole, and filed a third-party complaint against her and a counterclaim against the father, John W. Cole, for contribution. Both the counterclaim and the third-party complaint allege the following items of negligence:

'(a) * * * failed to exercise ordinary care to protect * * *, minor plaintiff, Jeffrey Cole, from known or anticipated danger;

'(b) * * * negligently and carelessly allowed the minor plaintiff to be placed in a position of danger;

'(c) * * * permitted the minor plaintiff to play in an area containing a swing set which he (she) knew or should have known could cause danger and injury to him;

'(d) * * * failed to supervise or to provide for proper supervision of the minor plaintiff.'

The parents-appellants filed demurrers to the third-party complaint and counterclaim.

Schellinger & Doyle, Milwaukee, for appellants.

Hayes & Hayes, Milwaukee, for respondents.

CONNOR T. HANSEN, Justice.

In Goller v. White (1963), 20 Wis.2d 402, 413, 122 N.W.2d 193, 198, this court abrogated parental immunity except in two situations:

'* * * (1) Where the alleged negligent act involves an exercise of 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. Accordingly the rule is abolished in personal injury actions subject to these noted exceptions. * * *'

Appellant argue that control of play activity of a young child is a parental function which constitutes an exercise of parental discretion with respect to 'other care' as that term was used in Goller v. White, supra, and therefore the trial court should have upheld their demurrer to the counterclaim and third-party complaint.

This court, in Lemmen v. Servais (1968), 39 Wis.2d 75, 158 N.W.2d 341, held that parents who failed to properly instruct a six-year old child in how to leave a school bus and cross a highway were exercising ordinary parental discretion with respect to 'other care' of their child. In that case language was used which appellants now point to in arguing that their alleged negligence (supervision of the play of a young child) is a familial obligation--as distinct from a general obligation--and is, therefore, an area protected by parental immunity.

'* * * The two exceptions enunciated in Goller recognize that within the framework of parental authority and discretion, parents must be accorded immunity from litigation which in fact would disrupt family harmony and unity. The immunity is limited to transactions which are essentially parental. Dunlap v. Dunlap (1930), 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055.

'A new and heavy burden would be added to the responsibility and privilege of parenthood, if within the wide scope of daily experiences common to the upbringing of children a parent could be subjected to suit for damages for each failure to exercise care and judgment commensurate with the risk. Such is not the rule of Goller.' Lemmen v. Servais, supra, pp. 79, 80, 158 N.W.2d p. 344.

Appellants assert that a parent's supervision of a child's play is an activity entitled to immunity because it involves direct parental control and is primarily an inter-action between parent and child rather than a nondomestic activity. However, parental immunity is not determined by...