Paige v. Bing Const. Co.

• Decision Date: 30 May 1975
• Docket Number: Docket No. 20771,No. 2,2
• Citation: Paige v. Bing Const. Co., 233 N.W.2d 46, 61 Mich.App. 480 (Mich. App. 1975)
• Parties: Bernard PAIGE, Administrator of the Estate of Kathleen Paige, Deceased, Plaintiff-Appellee, v. BING CONSTRUCTION COMPANY, a Michigan Corporation, Defendant and Third-Party Plaintiff-Appellant, v. E. C. ANDERSON PLUMBING CO., a Michigan Corporation, Third-Party Defendant, and Patricia Paige and Bernard Paige, Third-Party Defendants-Appellees
• Court: Court of Appeal of Michigan

Page 46

233 N.W.2d 46

61 Mich.App. 480

Bernard PAIGE, Administrator of the Estate of Kathleen

Paige, Deceased, Plaintiff-Appellee, v. BING CONSTRUCTION COMPANY, a Michigan Corporation, Defendant and Third-Party Plaintiff-Appellant, v. E. C. ANDERSON PLUMBING CO., a Michigan Corporation, Third-Party Defendant, and Patricia Paige and Bernard Paige, Third-Party Defendants-Appellees.

Docket No. 20771.

Court of Appeals of Michigan, Division No. 2.

May 30, 1975.

Released for Publication Sept. 30, 1975.

Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon, P.C., by Donald J. Morbach, Detroit, for Bing Const. Co.

William M. Brukoff, Southfield, for Bernard Paige.

Bernard N. Portnoy, Bloomfield Hills, for Patricia and Bernard Paige.

Before ALLEN, P.J., and McGREGOR and CAVANAGH, JJ.

CAVANAGH, Judge.

This appeal arises from the trial court's dismissal of the complaint filed by the defendant and third-party plaintiff, Bing Construction Company, against third-party defendants, Bernard and Patricia Paige.

On October 5, 1971, Kathleen Paige, a 2 1/2-year-old daughter of Mr. and Mrs. Paige, fell into a man-made hole on the defendant's construction site. As a result of this tragic accident, the child died a few days later. On November 26, 1973, plaintiff Bernard Paige, acting as administrator of the estate of Kathleen Paige, filed a wrongful death action in Oakland County Circuit Court. The complaint alleged that Bing Construction Company negligently allowed an uncovered and unguarded pit to exist on the site.

On December 17, 1973, Bing filed a third-party complaint for contribution against Bernard and Patricia Paige for negligent parental supervision. The third-party defendants moved for summary judgment on the grounds that the complaint failed to state a cause of action upon which relief could be granted and that there was no genuine material issue of fact and they were entitled to a judgment as a matter of law. GCR 1963, 117.2(1), 117.2(3). This summary judgment motion was granted against third-party plaintiff Bing 'for the reason that the third party complaint does not state a cause of action * * *'.

This case involves the application of Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972), in which the Michigan Supreme Court abrogated the doctrine of parental immunity. The decision, however, established exceptions to the principle:

'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 case.' 388 Mich. 1, 8, 199 N.W.2d 169, 173.

The trial court in this case apparently determined that the third-party plaintiff's claim was legally insufficient.

'The test which the court should apply in considering motions under GCR 1963, 117.2(1) is whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.' Crowther v. Ross Chemical Co., 42 Mich.App. 426, 431, 202 N.W.2d 577, 581 (1972).

Testing the motion by the pleadings, we must decide whether there exists in this jurisdiction a cause of action for negligent parental supervision in the circumstances of this case. That question can only be answered by applying the two Plumley exceptions.

The two exceptions have been construed by courts in other jurisdictions with varying results. The Wisconsin Supreme Court recently held that a parent's failure to provide proper supervision to a child injured while playing on a swing did not fall within either of the two exceptions. Cole v. Sears, Roebuck & Co., 47 Wis.2d 629, 634--635, 177 N.W.2d 866, 869 (1970), held:

'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. In this regard, construing 'other care' as that term is used in relation to the phrase 'food, clothing, housing, medical and dental services,' does not warrant an expansion of immunity into an area of parental transactions which is not essentially concerned with providing a child with such similar necessities.'

One Minnesota decision, however, leans the other direction. In Cherry v. Cherry, 295 Minn. 93, 203 N.W.2d 352 (1972), the Minnesota Supreme Court held that a child could not maintain a suit against her mother for negligence where the child had been injured as a result of biting into an electrical cord. After seeing the child playing with a table lamp cord, the mother nonetheless left the child unattended for a short time. The Court held that this claim came within the second immunity exception and the mother's acts were an exercise of ordinary parental discretion with respect to the provision of care for the infant.

In addition to Cherry the Appellate Division of the New York Supreme Court has recently ruled that lack of supervision of an unemancipated child by his parent does not constitute an actionable tort. Lastowski v. Norge Coin-O-Matic, Inc., 44 App.Div.2d 127, 355...