Miller v. Cook, Docket No. 78-407

• Decision Date: 07 November 1978
• Docket Number: Docket No. 78-407
• Citation: 87 Mich.App. 6,273 N.W.2d 567
• Parties: Rodney MILLER, Plaintiff, and Maxine Miller and Phillip Miller, Plaintiffs-Appellants, v. George COOK, North Adams High School, Harold Trott (Superintendent of Schools) Dale Summitt (Principal North Adams High School), North Adams Board of Ed., Carl D. Wiedner, Glen Miller Jr., Harvey Nichols, Henry J. Raber and Duane Richards, Loren Hochstedler, and Ronald Neer (members of North Adams Board of Education) and Janice Fry and North Adams School District, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 567

273 N.W.2d 567

87 Mich.App. 6

Rodney MILLER, Plaintiff and Maxine Miller and Phillip Miller, Plaintiffs-Appellants, v. George COOK, North Adams High School, Harold Trott (Superintendent of Schools) Dale Summitt (Principal North Adams High School), North Adams Board of Ed., Carl D Wiedner, Glen Miller Jr., Harvey Nichols, Henry J. Raber and Duane Richards, Loren Hochstedler, and Ronald Neer (members of North Adams Board of Education) and Janice Fry and North Adams School District, Defendants-Appellees.

Docket No. 78-407.

Court of Appeals of Michigan.

Nov. 7, 1978.

Released for Publication Jan. 12, 1978.

Sablich, Ryan, Dudley, Rapaport & Bobay, P.C. by Roger A. Rapaport, Lansing, for plaintiffs-appellants.

Lewis I. Loren, Hillsdale, for Cook, Summitt and Fry.

Dennis E. Whedon, Jackson, for rest of defendants-appellees.

Before V. J. BRENNAN, P. J., and ALLEN and O'CONNELL, ^* JJ.

ALLEN, Judge.

In this cause, plaintiffs-appellants ask that the limitations set forth in Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d 208 (1976), on the right of parents to recover damages for emotional injury sustained upon learning of injury to the child, ¹ be held inapplicable where the injury to the immediate family member is caused by an intentional tortfeasor as distinguished from a negligent tortfeasor. This issue of first impression comes to us following the trial court's January 23, 1978, order granting partial summary judgment in favor of all defendants and against plaintiffs Maxine Miller and Phillip Miller as parents of Rodney Miller.

On December 10, 1976, plaintiff Rodney Miller, then age 15, was attending a physical education class at the North Adams High School. The classroom teacher was defendant George Cook. Plaintiffs' complaint alleges that at said time and place, defendant Cook, after first striking Rodney Miller in the throat and thereby knocking him down, picked Rodney up by the throat and for more than five minutes beat Rodney's head against the bleachers following which defendant carried Rodney by the throat through the school hallways to the office of the high school principal where Rodney was denied the right to call his parents and denied medical assistance. The reasons for the alleged assault are not set forth in the complaint.

Plaintiff parents then allege that they sustained injuries in that they became emotionally upset and distraught as a result of the injuries suffered by their son. In their brief, the parents admit that they were not present when the assault took place nor did they become aware of the injuries within a time fairly contemporaneous with the alleged assault.

The defendants filed a motion for partial summary judgment under GCR 1963, 117.2(1) against plaintiffs Phillip Miller and Maxine Miller, claiming that, since the parents neither witnessed the assault nor became aware of the assault contemporaneously with its occurrence, the complaint failed to state a claim upon which relief could be granted. After hearing oral argument and reviewing the law on the matter, the trial court granted the motion on January 23, 1978. ²

The issue of recovery by a plaintiff when a tort is committed upon a family member is thoroughly discussed in two Michigan cases. Perlmutter v. Whitney, 60 Mich.App. 268, 230 N.W.2d 390 (1975); Gustafson v. Faris, supra. In Perlmutter, this Court ruled that "the law does not allow recovery for mental anguish suffered by third persons as a result of their concern for the injuries of others where such third persons were not witnesses to the accident in which those injuries were sustained". 60 Mich.App. at 273, 230 N.W.2d at 390. In Gustafson, the rule was softened somewhat by allowing recovery even if the parent was not present, provided that the parent's shock and resulting injury occurred fairly contemporaneous with the injury to the child. In so ruling, this Court adopted, by reference, the limitations on recovery by third persons set forth in Prosser, Torts (4th ed.), § 54, pp. 334-335.

"Some limitations might, however, be suggested. It is clear that the injury threatened or inflicted upon the third person must be a serious one, of a nature to cause severe mental disturbance to the plaintiff, and that the shock must result in actual physical harm. The action might, at least initially, well be confined to members of the immediate family of the one endangered, or perhaps to husband, wife, parent, or child, to the exclusion of mere bystanders, and remote relatives. As an additional safeguard, it might be required that the plaintiff be present at the time of the accident or peril, or at least that the shock be fairly contemporaneous with it, rather than follow when the plaintiff is informed of the whole matter at a later date. (Footnotes omitted. Emphasis supplied.)" Gustafson, supra, 67 Mich.App. at 368-369, 241 N.W.2d at 211.

Plaintiff parents contend that the Gustafson rule applies only to negligence actions and not to situations where the injury is intentionally inflicted. In support of this position two arguments are advanced: (1) § 435A and § 435B of 2 Restatement of Torts 2nd ³ support such position; and (2) § 54 from Prosser, Torts (4th ed), quoted above, addresses itself solely to negligence situations. We disagree on both arguments.

Sections 435A and B of the Restatement, read in conjunction with the commentary thereto, refer to the scope of damages rather than to unintended harm to third persons. The illustrations accompanying the commentary refer only to the extended harm of the person directly injured. Clearly, said sections concern additional compensatory relief to...