Dresser v. Cradle of Hope Adoption Center, Inc.

• Decision Date: 20 March 2006
• Docket Number: No. 03-CV-10083-BC.,03-CV-10083-BC.
• Citation: 421 F.Supp.2d 1024
• Parties: Richard DRESSER and Marilyn Dresser, Husband and Wife, and as Next Friend of Mikhail Robert Dresser, a Minor Child, Plaintiffs, v. CRADLE OF HOPE ADOPTION CENTER, INC., a Maryland corporation, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

421 F.Supp.2d 1024

Richard DRESSER and Marilyn Dresser, Husband and Wife, and as Next Friend of Mikhail Robert Dresser, a Minor Child, Plaintiffs, v. CRADLE OF HOPE ADOPTION CENTER, INC., a Maryland corporation, Defendant.

No. 03-CV-10083-BC.

United States District Court, E.D. Michigan, Northern Division.

March 20, 2006.

COPYRIGHT MATERIAL OMITTED

Christopher A. Swartz, Swartz & Wilson, Manda L. Anagnost, Russell C. Babcock, Mastromarco & Jahn (Saginaw), Saginaw, MI, for Plaintiffs.

Patrick L. McCarley, Ralph C. Chapa, Jr., Kaufman & Payton, Farmington Hills, MI, for Defendant.

ORDER DENYING PLAINTIFFS' MOTION IN LIMINE, AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE

LAWSON, District Judge.

Before the Court are cross motions in limine filed by the parties in preparation for trial. The facts of the case are summarized in detail in the Court's opinion on the parties' motions for summary judgment. See Dresser v. Cradle of Hope Adoption Ctr., Inc., 358 F.Supp.2d 620, 623-30 (E.D.Mich.2005). In that opinion, the Court dismissed several of the plaintiffs' claims but left intact a negligence claim against defendant Cradle of Hope Adoption Center, Inc. on behalf of the minor child, Mikhail Dresser. Id. at 638-42, 643. The plaintiffs seek the exclusion of evidence of negligence on the part of plaintiffs Marilyn and Richard Dresser, Mikhail's parents, because their negligence cannot be attributed to the minor plaintiff, who has the only remaining claim. The defendant has filed five motions seeking the exclusion of evidence of damages sustained by Mikhail's family members, testimony as to the standard of care, economic and future damages, and expert testimony of Dr. Robertson and Thomas Smith. The plaintiffs oppose all the defendant's motions except the motion to exclude evidence of damages sustained by Mikhail's family members, in which they concur. The Court will discuss each motion in turn.

I.

The plaintiffs contend that evidence of negligence of Mikhail Dresser's parents is not admissible because under Michigan law, the negligence of a parent may not be imputed to the child. See Byrne v. Schneider's Iron & Metal, Inc., 190 Mich. App. 176, 189, 475 N.W.2d 854, 860 (1991); Rodriguez v. Solar of Michigan, Inc., 191 Mich.App. 483, 492, 478 N.W.2d 914, 920 (1991). They also contend that Mikhail as a minor under the age of seven years old is "presum[ed] incapable of committing negligent or criminal acts or intentional torts." Bragan ex rel v. Symanzik, 263 Mich.App. 324, 334, 687 N.W.2d 881, 888 (2004).

The defendant argues, however, that under the state's "tort reform" legislation enacted in 1995, the defendant is entitled to ask for the apportionment of damages against all persons who may have contributed to the plaintiff's injuries. See Mich. Comp. Laws § 600.2957. The defendant contends that the statutory provision includes parents, and a defendant can be ordered to pay only the percentage of damages that corresponds to its own its liability, which may not include those damages for which non-parties are responsible. If that is so, then the parents' conduct is relevant to the question of their negligence.

There is no Michigan appellate decision that attempts to reconcile the statutes that require apportionment of damages and abolish joint and several liability with the common law rule against imputing a parent's negligence to a child. Therefore, since the state's highest court has not decided the issue, "the federal court must ascertain the state law from `all relevant data.'" Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995) (quoting Bailey v. V. & O Press Co., 770 F.2d 601, 604 (6th Cir. 1985)). "Relevant data includes the state's intermediate appellate court decisions, as well as the state supreme court's relevant dicta, restatements of the law, law review commentaries, and the majority rule among other states." Ososki v. St. Paul Surplus Lines, 156 F.Supp.2d 669, 674 (E.D.Mich.2001) (internal quotes and citation omitted) (citing Angelotta v. Am. Broad. Corp., 820 F.2d 806, 807 (6th Cir. 1987)).

The basis of the rule that a parent's negligence cannot be imputed to the child is that, under Michigan common law, parents cannot be sued directly for certain tortious injuries to the child. As the Michigan Court of Appeals explained, "Both comparative and contributory negligence are founded upon the breach of some, legal duty . ... Since the child cannot sue his parent for negligent supervision, the parent cannot be jointly or severally liable with another tortfeasor." Byrne, 190 Mich.App. at 188-89, 475 N.W.2d at 860. Although the doctrine of intra-family immunity has been abrogated in Michigan, parental immunity still exists in cases involving "an exercise of reasonable parental authority over the child" or "reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care." Plumley v. Klein, 388 Mich. 1, 8, 199 N.W.2d 169, 172-73 (1972). Since this case involves the provision of medical services to Mikhail, certainly his parents would be immune from a tort claim brought against them by Mikhail.

However, in 1995 the Michigan legislature enacted Public Act 249, which amended the Revised Judicature Act and eliminated joint and several liability. The relevant statute now states:

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 ... 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.

Mich. Comp. Laws § 600.2957(1). The purpose of this legislation is to "allocate liability according to the relative fault of all persons contributing to the accrual of a plaintiff's damages." Lamp v. Reynolds, 249 Mich.App. 591, 596, 645 N.W.2d 311, 315 (2002). Unlike the rule of joint and several liability, "a person shall not be required to pay damages in an amount greater than his or her percentage of fault." Mich. Comp. Laws § 600.6304(4).

Michigan courts have held that tort damages must be apportioned even against parties who are immune from suit. See Kopp v. Zigich, 268 Mich.App. 258, 260-61, 707 N.W.2d 601, 602-03 (2005) (apportioning damages to the plaintiff's employer who was immune from suit under the workers' compensation exclusive remedy provision). According to Michigan's intermediate appellate court, "the comparative fault statutes do[] not require proof of a duty before fault can be apportioned and liability allocated. The statutes only require proof of proximate cause." Id. at 260, 707 N.W.2d at 602. Given the change of the legislative focus on the tort reparations system in Michigan from making an injured plaintiff whole to protecting partially at-fault defendants from excessive exposure to damages, the Court believes that Michigan courts would conclude that liability must be apportioned under section 600.2957(1) to parents of an injured child, even if the parents are immune from suit.

The plaintiffs also contend that the defendant waived the defense by not pleading it. It appears that a claim that others are at fault is an affirmative defense that must be pleaded. See Veltman v. Detroit Edison Co., 261 Mich.App. 685, 695, 683 N.W.2d 707, 713 (2004) (holding that "[i]f a party desires to take advantage of the limitations of the cited statutes, notice under the court rule is a prerequisite"). Moreover, Michigan has promulgated a court rule that prescribes notice requirements as a condition of alleging "non-party fault." See Mich. Ct. Rule 2.112(K). The defendant did not serve a notice under Rule 2.112(K) in this case.

It is conceivable that Rule 2.112(K)'s notice requirements may not apply in this case because Mikhail's parents are not "non-parties"; they are named as plaintiffs in their own right and as Mikhail's next friend. The Court need not decide that question, however, because the state procedural rule does not apply in this federal action. See Long v. Adams, 411 F.Supp.2d 701, 705-06 (E.D.Mich.2006) (holding that in diversity cases, state procedural rules must yield when an issue is governed by a Federal Rule of Civil Procedure). Federal Rule of Civil Procedure 8(c) governs affirmative defenses and states that a defendant "shall set forth affirmatively ... any ... matter constituting an avoidance or affirmative defense." Fed.R.Civ.P. 8(c). The defendant alleged in its answer to the first amended complaint that "[a]ny damage or injury plaintiff may have suffered was caused in whole or in part by persons or factors not related to Cradle of Hope, including plaintiffs themselves, or were pre-existing conditions." Def.'s Answer First Am. Compl. at 10. That allegation is sufficient to provide the plaintiffs notice of the defense and entitle the defendant to offer evidence on it. See Baker v. City of Detroit, 483 F.Supp. 919, 921 (E.D.Mich. 1979) (observing that "hypertechnicality in pleading requirements should be avoided. Thus, liberal pleading rules are equally applicable to the pleading of affirmative defenses") (quoting 2A Moore's Federal Practice Par. 8.27(3)).

Evidence of Mikhail's parents' conduct is relevant to the defendant's affirmative defense, and therefore it will be received if it is otherwise admissible. The plaintiffs' motion in limine will be denied.

II.

The defendant argues that evidence of damages or hardship suffered by Mikhail's family members should not be received because the sole remaining cause of action belongs to Mikhail alone, and the damages of others is irrelevant. The plaintiffs agree that evidence reflecting damages suffered by Mikhail's family members would be irrelevant and inadmissible. Therefore, the Court will grant the...