Mayberry v. Pryor

• Decision Date: 30 July 1984
• Docket Number: Docket No. 63596
• Citation: 134 Mich.App. 826,352 N.W.2d 322
• 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. 134 Mich.App. 826, 352 N.W.2d 322
• Court: Court of Appeal of Michigan — District of US

Page 322

352 N.W.2d 322

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. 63596.

134 Mich.App. 826, 352 N.W.2d 322

Court of Appeals of Michigan.

Submitted June 7, 1983.

Decided June 4, 1984.

Released for Publication Aug. 2, 1984.

Leave to Appeal Granted July 30, 1984.

[134 MICHAPP 828] Skinner & Gustafsen by William W. Allsopp, Bay City, for plaintiff-appellant.

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

Before DANHOF, P.J., and ALLEN and HANSEN, ^* JJ.

HANSEN, Judge.

In this action, plaintiff sought to recover damages for injuries allegedly suffered by Justin Mayberry when bitten by a dog. The circuit court granted summary judgment for defendants Alfred and Carol Pryor. Although the circuit court did not specify the subrule under which it acted, it is apparent from the record that the court held that there was no genuine issue as to any material fact and that defendants Pryor were entitled to judgment as a matter of law, GCR 1963, 117.2(3). This Court granted plaintiff's delayed application for leave to appeal.

The affidavits and other evidence before the circuit court indicate that, at the time of the accident, Justin Mayberry was just short of four years old and was temporarily in the foster care of defendants Pryor pursuant to a probate court order. Plaintiff's complaint alleged that Justin was attacked by a dog belonging to defendants Day when Justin was left alone and unattended on the front porch or in the yard of the residence of [134 MICHAPP 829] defendants Pryor. The complaint further alleged that defendants Pryor failed to provide Justin with supervision adequate to assure his safety and instead recklessly and negligently allowed him to enter into a situation foreseeably dangerous to his person.

Summary judgment for defendants Pryor was based on parental immunity. In Plumley v. Klein, 388 Mich. 1, 8, 199 N.W.2d 169 (1972), the Court stated the rule of parental immunity which now prevails in Michigan:

"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." (Footnote omitted.)

For other jurisdictions adopting this rule and the two exceptions, see Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968), and Rigdon v. Rigdon, 465 S.W.2d 921 (Ky., 1971).

In Hush v. Devilbiss Co., 77 Mich.App. 639, 647, 259 N.W.2d 170 (1977), the Court concluded that the exceptions to the abolition of parental immunity stated in Plumley could be invoked by a person standing in loco parentis to the child. The Court explained the factors relevant to determination of in loco parentis status:

"Legally, the assumption of in loco parentis status is a question of intent. Intent to assume parental status can be inferred from the acts and declarations of the [134 MICHAPP 830] parties. Some factors to consider are the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; the extent to which duties commonly associated with parenthood are exercised. Providing financial support may be an unimportant consideration in light of the relative situations of the person standing in loco parentis and the real parents. In some cases, while providing financial support may be unnecessary, the benefits flowing to the child by reason of someone's assumption of the other infinitely various parental duties may be most essential." (Footnote and citations omitted.) 77 Mich.App. 649, 259 N.W.2d 170.

In re Allison, 336 Mich. 316, 321, 58 N.W.2d 90 (1953), contains the following definition:

"A foster father is defined as a man who has performed the duties of a parent to the child of another by rearing the child as his own child."

Nothing in the statutes governing temporary placement of dependant or neglected children by the probate court in foster care is inconsistent with this definition. See M.C.L. Sec. 712A.18; M.S.A. Sec. 27.3178(598.18), M.C.L. Sec. 712A.19, M.S.A. Sec. 27.3178(598.19), and M.C.L. Sec. 400.18c; M.S.A. Sec. 16.418(3). By assuming temporary foster care of Justin, defendants Pryor demonstrated their intent to perform the duties of parents to the child and thus their intent to temporarily assume parental status. We conclude that, as a matter of law, persons who assume temporary foster care of a child pursuant to probate court order stand in loco parentis to the child. For a decision from another jurisdiction reaching the same result, see Goller v. White, supra.

The gravamen of plaintiff's complaint is negligent parental supervision. In cases interpreting [134 MICHAPP 831] the Plumley rule, this Court has determined that an action for negligent parental supervision is barred because it involves the parent's exercise of authority over the child and thus falls within the first exception stated in Plumley to the abolition of parental immunity. Paige v. Bing Construction Co., 61 Mich.App. 480, 483-486, 233 N.W.2d 46 (1975); McCallister v. Sun Valley Pools, Inc., 100 Mich.App. 131, 137-139, 298 N.W.2d 687 (1980); American States Ins. Co. v. Albin, 118 Mich.App. 201, 207, 324 N.W.2d 574 (1982). Plaintiff relies on Cole v. Sears, Roebuck & Co., 47 Wis.2d 629, 634, 177 N.W.2d 866 (1970), in which the court held that a parent's supervision of a child's play did not fall within the second exception to the abolition of parental immunity, that exception being for the exercise of parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. The Wisconsin Court explained:

"Supervision of a child's play indeed involves an area which is essentially parental, but society does not exact a legal duty with respect to such an obligation as is the case with providing a child with food, housing, medical and dental services and education."

We do not agree with the Wisconsin Court for two reasons. First, as was pointed out in Paige, 61 Mich.App. 484, 233 N.W.2d 46, the Wisconsin Court considered only the second exception to the abolition of immunity. Michigan courts have relied on the first exception to reach a contrary conclusion. Second, we cannot account for the Wisconsin Court's statement that society does not exact a legal duty from a parent with respect to...