McCallister v. Sun Valley Pools, Inc.

• Decision Date: 15 September 1980
• Docket Number: Docket No. 46717
• Citation: 100 Mich.App. 131,298 N.W.2d 687
• Parties: Christian Daniel McCALLISTER, Plaintiff-Appellant, v. SUN VALLEY POOLS, INC., a now defunct Michigan corporation, Richard E.Michalke, Joseph Valle, and Mel Grant, Defendants, and Lorimer McCallister and Josee McCallister, jointly and severally,Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 687

298 N.W.2d 687

100 Mich.App. 131

Christian Daniel McCALLISTER, Plaintiff-Appellant, v. SUN VALLEY POOLS, INC., a now defunct Michigan corporation Richard E.Michalke, Joseph Valle, and Mel Grant, Defendants and Lorimer McCallister and Josee McCallister, jointly and severally,Defendants-Appellees.

Docket No. 46717.

Court of Appeals of Michigan.

Sept. 15, 1980.

Released for Publication Dec. 9, 1980.

Carl F. Gerds, III, East Detroit, for plaintiff-appellant.

Donald O. Hibbs, Mount Clemens, for McCallister.

George J. Parish, Mount Clemens, for Sun Valley.

David L. Kull, Detroit, for Valle.

George J. Parish, Mount Clemens, for Grant.

Before KAUFMAN, P. J., and CYNAR and TOWNSEND, ^* JJ.

CYNAR, Judge.

Plaintiff-appellant, Christian Daniel McCallister, appeals from an order entered on August 6, 1979, granting summary judgment in favor of defendants-appellees Lorimer and Josee McCallister pursuant to GCR 1963, 117.2(1).

On May 24, 1975, plaintiff, then 15 years old, dove into the deep end of the family swimming pool located in the backyard of his home in Warren, Michigan. In the course of this dive, plaintiff struck the back of his head and neck against the bottom of the pool. As a result of this impact, plaintiff suffered permanent paralysis from the neck down.

On March 2, 1979, plaintiff filed a four-count complaint in Macomb County Circuit Court. Counts I and II of the complaint are not at issue in the present appeal.

In count III of the complaint, plaintiff alleged that defendants Lorimer and Josee McCallister, parents of the plaintiff, had certain duties to plaintiff, including a duty to investigate the dangerous nature of the pool, make the pool safe or purchase only a safe pool, properly look after plaintiff, warn him of possible dangers, and instruct him on the safe and proper use of the pool. Plaintiff alleged that his injuries were the direct and proximate result of the negligent acts and omissions of defendant parents.

In count IV, plaintiff alleged that defendant parents negligently and carelessly failed to eliminate the danger or take steps to protect children such as plaintiff from the danger represented by the swimming pool, in that defendants failed to post warnings, instruct plaintiff, install safety devices, or take any other steps to prevent other children residing in the general neighborhood from entering and using the pool or diving into the pool. Plaintiff prayed for five million dollars judgment against the defendant parents, jointly and severally.

On March 30, 1979, defendants Lorimer and Josee McCallister filed a motion for summary judgment pursuant to GCR 1963, 117.2(1). Defendants, noting that plaintiff was their son, argued that plaintiff failed to state a cause of action:

"2. Each and every allegation of liability asserted against the defendant parents is barred by the doctrine of parental immunity because each and every such allegation alleges a negligent act which involves the exercise of reasonable parental supervision over the child or the exercise of reasonable discretion with respect to the provision of housing and other care for the child."

In their answer to the complaint, filed on July 5, 1979, defendants reiterated their contention of parental immunity.

A hearing on the motion for summary judgment was held on May 17, 1979. The trial court took the motion under advisement.

On July 9, 1979, the trial court issued a written opinion, in which it held that the motion for summary judgment was properly founded, and granted summary judgment based on the parental immunity of plaintiff's parents. An order effecting the terms of that opinion was entered on August 6, 1979. Plaintiff now appeals from the above determination of the trial court.

Plaintiff raises but one issue in his appeal, contending that the trial court erred in granting summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1) on the grounds that the allegations of liability asserted against the defendant parents were barred by the doctrine of parental immunity.

A motion under GCR 1963, 117.2(1) is to be tested by the pleadings alone. The motion tests the legal basis of the complaint, not whether it can be factually supported. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972), inter alia. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Sullivan v. The Thomas Organization, PC, 88 Mich.App. 77, 82, 276 N.W.2d 522 (1979). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, a motion made under this subrule should be denied. Staffney v. Fireman's Fund Ins. Co., 91 Mich.App. 745, 751, 284 N.W.2d 277 (1979).

Our Supreme Court determined in Elias v. Collins, 237 Mich. 175, 177, 211 N.W. 88 (1926), that:

"It is a rule of the common law that a minor cannot sue his father in tort. The rule had its beginning in the interest of the peace of the family and of society, and is supported by sound public policy."

However, in Plumley v. Klein, 388 Mich. 1, 3-4, 199 N.W.2d 169 (1972), the Court reconsidered the doctrine of intra-family immunity in light of intervening social, legislative, and judicial changes. The mother and her four children were killed in an automobile accident. The father and husband sued, alleging that the mother was negligent. On appeal, the Court addressed the specific issue of "whether the personal representative of deceased children may recover damages from the personal representative of the deceased mother under the Wrongful Death Act (MCLA 600.2922; MSA 27A.2922) for ordinary negligence."

The Court, in reaching its decision, first noted that: "(a) number of our sister states who once recognized the above rule (of total immunity) have since abandoned it". Instead, they now recognize the right of a child to recover damages for injuries incurred as a result of negligent conduct on the part of the parent." Id., 5-6, 199 N.W.2d 169. The Court then cited the following recent decisions in other states as indicating that the modern trend is toward the elimination of intra-family immunity: Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963), Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966), Hebel v. Hebel, 435 P.2d 8 (Alaska, 1967), Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968), Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969), France v. APA Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970), Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971), and Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971). Id., 388 Mich. 5, fn. 2, 199 N.W.2d 169.

The Court then noted that "The Legislature also has moved toward an elimination of intra-family immunities * * *" in the form of abrogation of interspousal immunity. Id., 388 Mich. 7, 199 N.W.2d 169. The Supreme Court concluded that the best interest of justice and fairness to all concerned was most legally and equitably satisfied by abrogating intra-family immunity as a general rule but preserving it in the areas of exercise of parental authority and discretion.

"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, 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." (Footnotes omitted.) Id., 388 Mich. 8, 199 N.W.2d 169.

The Court finally noted that if a cause of action of negligent parental supervision is to be created, it should come from the Legislature and not the courts. Thus, the Court did not totally abrogate parental immunity. Instead, it reserved parental protection for negligence occurring in the exercise of parental supervision over the child and parental discretion in providing for food, clothing, housing, medical and dental services, and other care.

In Paige v. Bing Construction Co., 61 Mich.App. 480, 233 N.W.2d 46 (1975), lv. den. 395 Mich. 751 (1975), this Court concluded that the first exception to the abrogation of parental immunity, the "parental authority" exception, does apply to bar a claim of negligent parental supervision. In Paige, a child fell into a man-made hole on defendant's construction site and subsequently died of the injuries sustained in that accident. The plaintiff parent filed a wrongful death action against defendant construction company, who in turn filed a third-party complaint against the parents for contribution based upon negligent parental supervision. The trial court granted summary judgment in favor of the parents on the grounds that the third-party complaint failed to state a cause of action. This Court affirmed the summary judgment on the grounds that the first Plumley exception, parental authority, encompassed parental supervision. Thus, the action for negligent supervision of the parents was barred. In so holding, this Court stated in pertinent part:

"According to Plumley, where the alleged negligent act involved the exercise of reasonable parental authority over the child, the parents are immune from suit. While we note at the outset that this scheme is so general that it is difficult to apply the ambiguous exception to particular fact situations, we conclude that the first exception to the abrogation of parental immunity does apply so as to bar a claim of negligent parental supervision. A parent's...