Mayberry v. Pryor

• Decision Date: 24 September 1985
• Docket Number: Docket No. 74387
• Citation: 374 N.W.2d 683,422 Mich. 579,55 A.L.R.4th 767
• Parties: Kay MAYBERRY, Conservator of the Estate of Justin Mayberry, a Minor, Plaintiff-Appellant, v. Alfred PRYOR and Carol Pryor, husband and wife, Defendants-Appellees, and Ralph J. Day and Susan B. Day, husband and wife, Defendants. 422 Mich. 579, 374 N.W.2d 683, 55 A.L.R.4th 767
• Court: Michigan Supreme Court

Page 683

374 N.W.2d 683

Kay MAYBERRY, Conservator of the Estate of Justin Mayberry a Minor, Plaintiff-Appellant, v. Alfred PRYOR and Carol Pryor, husband and wife Defendants-Appellees and Ralph J. Day and Susan B. Day, husband and wife Defendants.

Docket No. 74387.

422 Mich. 579, 374 N.W.2d 683, 55 A.L.R.4th 767

Supreme Court of Michigan.

Argued March 7, 1985.

Decided Sept. 24, 1985.

Allsopp, Fitzgerald & Kolka by William W. Allsopp, Bay City, for plaintiff-appellant.

Collison, Chasnis & Dogger, P.C. by John A. Chasnis, Saginaw, for defendants-appellees Pryor.

CAVANAGH, Justice.

This appeal presents three questions for our consideration:

1) May foster parents invoke the defense of parental immunity in negligence suits brought by or on behalf of a foster child placed in their care?

2) If so, does negligent supervision of a child fall within the purview of the parental immunity doctrine?

3) If so, is the reasonableness of the alleged parental conduct a question of law or fact?

We hold that foster parents cannot invoke the defense of parental immunity and therefore may be held liable for their negligent conduct which proximately causes injury to their foster child. In light of this holding, we need not address the remaining two questions.

I

Defendants Alfred and Carol Pryor were properly licensed by the Department of Social Services as foster family home parents. Justin Mayberry was placed in their home in October, 1977, after the Bay County Probate Court temporarily removed him from the custody of his natural mother, plaintiff Kay Mayberry. ¹ At the time of the initial placement, Justin was twenty-two months old and deaf. Justin was briefly returned to Ms. Mayberry's custody twice, but was removed to the Pryors' home after appropriate hearings.

On November 18, 1979, Justin, then about four years old, was allegedly attacked by a German shepherd dog while sitting alone on the front porch of the Pryors' home. Because of his deafness and inability to communicate, Justin was unable to cry out for help. As a result of the attack, he suffered serious injuries and permanent brain damage. Justin apparently has been placed in a state residential facility because of his physical and mental disabilities.

Ms. Mayberry filed a complaint in June, 1980, against the Pryors for negligent supervision, and against defendants Ralph and Susan Day, the owners of the dog. The Pryors moved for summary judgment on the ground that their foster parent status entitled them to invoke the defense of parental immunity. In March, 1982, the Saginaw Circuit Court granted the Pryors' motion pursuant to GCR 1963, 117.2(3). ² The Court of Appeals affirmed. 134 Mich.App. 826, 352 N.W.2d 322 (1984), and certified, pursuant to Administrative Order No. 1984-2, that its decision was in conflict with Grodin v. Grodin, 102 Mich.App. 396, 301 N.W.2d 869 (1980), lv. den. 412 Mich. 867 (1981). We granted plaintiff's application for leave to appeal. We directed the parties to brief whether Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972), was properly applied to the instant case and whether foster parents may invoke parental immunity. 419 Mich. 901 (1984).

II

In Plumley, this Court joined a growing number of jurisdictions which have abolished the common-law rule that children cannot bring a tort cause of action against their parents. We retained the defense of parental immunity in only two limited situations:

"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." 388 Mich. 8, 199 N.W.2d 169.

Although Plumley addressed only the tort liability of a natural parent, the circuit court and Court of Appeals concluded here that persons acting in loco parentis to a child could also invoke the defense of parental immunity. Citing Hush v. Devilbiss Co., 77 Mich.App. 639, 259 N.W.2d 170 (1977), ³ the circuit court reasoned that licensed foster care homes provide children, whose natural parents are unwilling or unable to provide proper care and supervision, with a healthy and supervised environment. Since by definition foster parents replace the function of natural parents, the circuit court concluded that the Pryors stood in loco parentis to Justin. The Court of Appeals similarly held, as a matter of law, that persons who provide temporary foster care to a child pursuant to a probate court order stand in loco parentis to the foster child. 134 Mich.App. 830, 352 N.W.2d 322.

Both lower courts then held that an action for negligent parental supervision is barred because it involves the exercise of parental authority over a child, which falls within the first Plumley exception. Id., 134 Mich.App. pp. 830-831, 352 N.W.2d 322. ⁴ Finally, they concluded that the reasonableness of the exercise of parental authority is a question of law which can be disposed of by motion for summary judgment. The Court of Appeals at first distinguished, then rejected, the seemingly contrary holding in Grodin. Id., 832-833, 352 N.W.2d 322. ⁵

III

The tort liability of a foster parent is an issue of first impression in this state. Similar cases from other jurisdictions are conflicting. The vast majority of cases which have discussed the tort liability of persons standing in loco parentis to a child generally involved the child's stepparents, adoptive parents, grandparents, or other persons related by consanguinity, marriage, or adoption. In addition, the child was generally visiting with or being cared for by these persons with the natural parents' consent when the injury occurred. See cases discussed in 6 A.L.R. 4th 1066, Sec. 4, pp. 1087-1093; 41 A.L.R.3d 904, Sec. 11, pp. 960-963.

The situation is markedly different when a foster care arrangement is involved. Foster parents and foster children are not related by consanguinity, marriage, or adoption. See M.C.L. Sec. 722.111(f); M.S.A. Sec. 25.358(11)(f). They are brought together by means of a preexisting contractual arrangement between the DSS and the foster parents in which the latter are compensated for expenses incurred in caring for the child. See M.C.L. Sec. 400.115a-c; 712A.25; M.S.A. Sec. 16.490(25a)-(25c); 27.3178(598.25). The foster parents and home must conform to specific statutory and regulatory guidelines and the DSS is required to monitor them. See M.C.L. Sec. 722.111 et seq.; M.S.A. Sec. 25.358(11) et seq.; 1979 AC, R 400.191 et seq.

In addition, placement of the child in a foster family home generally is not voluntary. It often occurs after the child has been physically removed from the custody of the natural parent or other caretaker by order of the probate court after an adversary hearing due to neglect, mistreatment, or abandonment. See M.C.L. Sec. 712A.1 et seq.; M.S.A. Sec. 27.3178(598.1) et seq. Even a "voluntary" relinquishment of a child for foster care placement may be induced by threats of court proceedings or the product of uninformed consent. Smith v. Organization of Foster Families, 431 U.S. 816, 834, 97 S.Ct. 2094, 2104, 53 L.Ed.2d 14 (1977).

Finally, the goal of foster care is not to create a new "family" unit or encourage permanent emotional ties between the child and foster parents. Foster care is designed to provide a stable, nurturing, noninstitutionalized environment for the child while the natural parent or caretaker attempts to remedy the problems which precipitated the child's removal or, if parental rights have been terminated, until suitable adoptive parents are found. Smith, 431 U.S. 861-862, 97 S.Ct. (Stewart, J., concurring ). See also M.C.L. Sec. 400.18c(2), 712A.19; M.S.A. Sec. 16.418(3)(2), 27.3178(598.19).

There are few cases from other jurisdictions involving suits by foster children against foster parents. We are aware of only two cases in which a foster parent has been determined to stand in loco parentis to a foster child. In Miller v. Pelzer, 159 Minn. 375, 199 N.W. 97 (1924), the child was placed with the foster parents shortly after her birth and lived with them for twenty-five years. When she discovered that she was not their natural child, she filed suit alleging fraud and deceit and sought compensation for farm work she had performed. In dismissing the child's suit, the Minnesota Supreme Court initially noted that the family relation which had existed "for all practical purposes was just as sacred as if plaintiff had been the natural daughter." Id., p. 377, 199 N.W. 97. The true holding of the case, however, was that the foster parents were under no legal duty to inform the child of her true parentage and therefore plaintiff had failed to state a cause of action. Although Miller was cited with approval in London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 217 n. 13, 64 N.W.2d 781 (1954), the liability of a stepfather was involved in the latter case.

In Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963), the Wisconsin Supreme Court accepted the trial court's conclusion that the foster father stood in loco parentis to the foster child. It then proceeded to abolish the defense of parental immunity, except in two limited situations. ⁶ Since the child's complaint sufficiently alleged negligent parental supervision, a cause of action which did not fall within either exception, the Goller Court concluded that the foster father could be held liable. Id., pp. 409-413, 122 N.W.2d 193. The concurring opinion would have allowed the suit on the ground that parental immunity should not be extended to foster parents. Id., p. 413, 122 N.W.2d 193.

Several courts have permitted foster children to...