Hush v. Devilbiss Co.

• Decision Date: 23 August 1977
• Docket Number: Docket No. 29986
• Citation: 259 N.W.2d 170,77 Mich.App. 639
• Parties: Emerson HUSH, as next friend of Richard Hush, a minor, Plaintiffs, v. DEVILBISS COMPANY, a Foreign Corp., Champion Spark Plug Company, a Foreign Corporation and Arnold's, Inc., a Michigan Corporation, jointly and severally, Defendants-Third- Party P v. Irma M. HUSH, Third-Party Defendant-Appellee. 77 Mich.App. 639, 259 N.W.2d 170
• Court: Court of Appeal of Michigan — District of US

Page 170

259 N.W.2d 170

Emerson HUSH, as next friend of Richard Hush, a minor, Plaintiffs, v. DEVILBISS COMPANY, a Foreign Corp., Champion Spark Plug

Company, a Foreign Corporation and Arnold's, Inc.,

a Michigan Corporation, jointly and

severally,

Defendants-Third-

Party

P v. Irma M. HUSH, Third-Party Defendant-Appellee.

Docket No. 29986.

77 Mich.App. 639, 259 N.W.2d 170

Court of Appeals of Michigan.

Aug. 23, 1977.

Released for Publication Nov. 14, 1977.

[77 MICHAPP 640] Kerr, Wattles & Russell by Robert R. Nix, II, Detroit, for Devilbiss Co. et al.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy by Edmund M. Brady, Jr., Detroit, for Irma Hush.

Mather, Glime & Daoust by Denis R. LeDuc, Mount Clemens, for plaintiffs.

[77 MICHAPP 641] Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

V. J. BRENNAN, Judge.

Defendants, Devilbiss Company, Champion Spark Plug Company and Arnold's, Inc. (hereafter Devilbiss), appeal the order of Macomb County Circuit Court Judge Robert J. Chrzanowski entered on May 24, 1976, granting the motion for summary judgment filed by third-party defendant Irma M. Hush (hereafter Hush). An original complaint was instituted on March 13, 1975, by Emerson Hush, as next friend of Richard Hush, a minor, (hereafter plaintiff), against Devilbiss for injuries occurring on April 1, 1968, when plaintiff spilled the contents of a vaporizer containing hot water upon himself causing burns to various parts of his body. On February 10, 1976, the deposition of third-party defendant Hush was taken, which indicated her supervisory relationship at the time of the accident and which became a basis for a third-party complaint alleging negligence lodged against her by Devilbiss. Motion for summary judgment pursuant to GCR 1963, 117.2(3) was filed on April 8, 1976 by third-party defendant Hush. After hearing arguments on May 24, 1976, Judge Chrzanowski granted the motion on May 31, 1976, on grounds that Hush, as a grandmother, stood in loco parentis to plaintiff and possessed immunity from suit by plaintiff, thereby precluding third-party action for negligence by Devilbiss. Devilbiss appeals this decision by right under GCR 1963, 806.1.

The facts giving rise to this appeal may be simply stated. Third-party defendant Hush testified through her deposition that she and her husband lived at 21103 Nummer in Warren, Michigan,[77 MICHAPP 642] and had two children of their own, Sandra and Emerson. Emerson was married and had his own family and home. He had three children, Rebecca, Richard and Bethany. On the other hand, Sandra was only 14 years old and was living with third-party defendant Hush at the time of the accident.

Plaintiff came to live with third-party defendant Hush because a prolonged illness had kept his mother in the hospital. Rebecca, who was five years old at the time, remained at home with her father. Plaintiff and his twin sister Bethany, who were 14 and 15 months old, were placed with third-party defendant Hush.

The accident occurred when a vaporizer used for the children's colds and kept on a buffet in the Hush's living room was tipped or spilled by plaintiff in attempting to open the drawers of the buffet to get at some children's books kept there. According to third-party defendant Hush, the vaporizer was positioned there because the buffet was the highest piece of furniture in the house.

Third-party defendant Hush testified that the children came to live with her in September of 1967 and stayed with her for three years until September of 1970. Plaintiff continued to live with his grandmother for some time after the accident. Testimony also indicated that she virtually served as their mother during this three-year period. The trial court apparently accepted this fact in deciding that third-party defendant Hush stood in loco parentis to plaintiff, which status immunized her from suit and compelled his finding of summary judgment for her.

Defendant Devilbiss contends first that the limited tort immunity granted a parent for negligent acts involved in the exercise of parental authority [77 MICHAPP 643] over a child does not extend to a grandmother and so does not bar a third-party cause of action for negligence.

In 1972, the Michigan Supreme Court abolished the doctrine of intra-family tort immunity. Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972). However, in so doing, two exceptions to abolition were noted:

"We are persuaded that the modern rule best serves the interests of justice and fairness to all concerned. The case of Elias v. Collins, supra, (237 Mich. 175, 211 N.W. 88 (1926)) which provides for intra-family tort immunity is overruled. A child may maintain a lawsuit against his parent 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) 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." Plumley v. Klein, supra at 8, 199 N.W.2d at 172.

This Court has held that negligent parental supervision comes within the first exception outlined in Plumley :

"Parents have a social and moral obligation to provide maintenance and guidance for their children, and the state benefits from their meeting this obligation. The law does step into this private relationship where the child's well-being is seriously affected. See M.C.L.A. 750.135, 750.136, 750.161 et seq.; M.S.A. 28.330, 28.331, 28.358 et seq. Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. Also, different cultural, educational and financial conditions affect the manner in [77 MICHAPP 644] which different parents supervise their children. Allowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second-guess a parent's management of family affairs considerably beyond these statutory protections." Paige v. Bing Construction Co., 61 Mich.App. 480, 485, 233 N.W.2d 46, 49 (1975), lv. den., 395 Mich. 751 (1975).

The precise issue presented to us on this appeal is one of first impression in Michigan. We must decide whether the limited exception to abolition of intra-family immunity is properly applied to persons standing in loco parentis as well as to natural parents. Neither cases applying the old immunity rule nor cases decided since Plumley have addressed the availability of immunity to persons standing in loco parentis. Both parties agree that defendant Hush is accused of negligently supervising her grandson, minor plaintiff Richard Hush. Therefore, on the authority of Paige the immunity doctrine would clearly apply if Hush were the mother of Richard.

Defendant Hush has thoroughly researched the law of other jurisdictions. As noted, few courts have insisted upon distinguishing between natural parents and persons standing in loco parentis to the child for purposes of immunity. See Annotation, 41 A.L.R.3d 904, § 11, pp. 960-963; 67 C.J.S. Parent and Child § 61, pp. 787-789.

In abolishing the intra-family tort immunity doctrine, the Plumley Court followed the lead of the Wisconsin Supreme Court. Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963). In Goller, the issue was whether a person standing in loco parentis to a minor was immune from suit by the minor for personal injury based upon negligence. The Wisconsin Court took advantage of the opportunity [77 MICHAPP 645] to abolish the parental immunity rule. They also noted the two exceptions later copied in Plumley. Because the defendant there, plaintiff's foster father, had failed to submit an affidavit which would bring him within one of the exceptions summary judgment in his favor was reversed. The Court did not expressly address the propriety of extending immunity to persons standing in loco parentis. However, its statement of the issue and its result clearly reveal that the result would have been no different if defendant had been the natural father of plaintiff. See McManus v. Hinney, 31 Wis.2d 333, 143 N.W.2d 1 (1966).

Consequently, we now find necessary a review of the policy considerations which led to the establishment of the immunity rule in order to decide in this case if extension to persons in loco parentis is warranted. Such objects as preservation of domestic tranquility and family unity, protection of family resources, and recognition of the need to avoid judicial intervention into the core of parenthood and parental discipline have been most frequently cited as key policy considerations underlying the immunity doctrine. London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 64 N.W.2d 781 (1954); Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974); Lyles v. Jackson, 216 Va. 797, 223 S.E.2d 873 (1976); Rutkowski v. Wasko, 286 App.Div. 327, 143 N.Y.S.2d 1 (1955).

Illustrative of the cases which have recognized extension of immunity to persons standing in loco parentis is London Guarantee, supra. The Minnesota Supreme Court there found no justification for refusing to apply the rule to stepparents who stood in loco parentis. The Court noted that immunity is not granted to parents simply because they are parents, but because of the duties and responsibilities[77 MICHAPP 646] they assume within the household. In their opinion, public policy would be compromised were stepparents discouraged from voluntarily and unselfishly assuming an in loco parentis position to a child in need of parental care. In Rutkowski, supra, the New York Court shared the sentiments of the Minnesota Court, finding that someone standing in...