Phillips v. Deihm

• Decision Date: 15 September 1995
• Docket Number: 171316,Docket Nos. 164586
• Citation: Phillips v. Deihm, 541 N.W.2d 566, 213 Mich.App. 389 (Mich. App. 1995)
• Parties: William Reese PHILLIPS, Plaintiff-Appellee, v. Duwayne DEIHM, Defendant-Appellant, and Estate of Opal Deihm, Deceased, Defendant-Appellee. William Reese PHILLIPS, Plaintiff-Appellant/Cross Appellee, v. ESTATE OF Opal DEIHM, Deceased, Defendant-Appellee/Cross Appellant, and Duwayne Deihm, Defendant.
• Court: Court of Appeal of Michigan

Page 566

541 N.W.2d 566

213 Mich.App. 389

William Reese PHILLIPS, Plaintiff-Appellee, v.Duwayne DEIHM, Defendant-Appellant, andEstate of Opal Deihm, Deceased, Defendant-Appellee.

William Reese PHILLIPS, Plaintiff-Appellant/Cross Appellee, v.ESTATE OF Opal DEIHM, Deceased, Defendant-Appellee/Cross Appellant, andDuwayne Deihm, Defendant.

Docket Nos. 164586, 171316.

Court of Appeals of Michigan.

Submitted May 11, 1995, at Lansing.

Decided Sept. 15, 1995, at 9:00 a.m.

Released for Publication Dec. 18, 1995.

Bernick, Omer & Scott, P.C. by Keldon K. Scott, Anderson, Stull & Associates by David J. Anderson, and Patrick L. Rose, Lansing, for William R. Phillips.

Kallas & Henk, P.C. by Leonard A. Henk, Bloomfield Hills, for Estate of Opal Deihm.

Bullen, Moilanen, Klaasen & Swan, P.C. by David W. Swan, Jackson, for Duwayne Deihm.

Before HOEKSTRA, P.J., and WAHLS and BUTH, ^* JJ.

WAHLS, Judge.

Plaintiff, initially through a conservator and later on his own, brought and maintained an action seeking damages for the sexual abuse inflicted upon him by defendantDuwayne Deihm over an eight-year period.Opal Deihm was named as a defendant because she allegedly was aware of, but failed to prevent, the sexual abuse.After the filing of these appeals, Opal passed away and her estate has been substituted as a party to the appeals.

In Docket No. 164586, plaintiff appealed as of right the trial court's dismissal of the claim against Opal at the conclusion of a jury trial.Opal cross appealed, challenging the trial court's earlier refusal to grant her motion for summary disposition.In plaintiff's appeal, we reverse the trial court judgment dismissing the claim against Opal.In Opal's cross appeal, we affirm the order denying her motion for summary disposition.

In Docket No. 171316, Duwayne appeals by leave granted from the trial court judgment incorporating a jury award in favor of plaintiff.We affirm.

At trial, plaintiff testified that Duwayne sexually abused him approximately 150 times.The abuse began when plaintiff was three years old, and stopped when he was eleven.For a time, the abuse occurred almost on a daily basis.The abuse occurred mostly in the home of Duwayne and Opal, who slept in separate bedrooms.

I

In Docket No. 164586, plaintiff argues that the trial court abused its discretion when it granted Opal's motion to amend her answer to add an affirmative defense.We disagree.A court should freely grant leave to amend a complaint when justice so requires.MCR 2.118(A)(2);Patillo v. Equitable Life Assurance Society, 199 Mich.App. 450, 456, 502 N.W.2d 696(1993).The rules pertaining to the amendment of pleadings are designed to facilitate amendment except when prejudice to the opposing party would result.Patillo, supra, at p. 456, 502 N.W.2d 696.This Court will not reverse a trial court's decision on a motion to amend a complaint absent an abuse of discretion that results in injustice.Price v. Long Realty, Inc., 199 Mich.App. 461, 469, 502 N.W.2d 337(1993).

Here, the scheduling conference order established the deadline for discovery as December 3, 1992, and the deadline for motions on the pleadings as January 15, 1993.On January 14, 1993, Opal moved for summary disposition or, in the alternative, argued that she was entitled to the defense of parental immunity.Under the scheduling order, Opal's motion was timely.

At the same time she moved for summary disposition, Opal moved to amend her pleadings so that they would conform to the evidence.Opal's motion for summary disposition was brought in part pursuant to MCR 2.116(C)(8) and (10).Accordingly, when the trial court denied Opal's motion for summary disposition, it was required to allow Opal to amend her pleadings.MCR 2.116(I)(5).

In addition, plaintiff did not request additional time for discovery, nor did he request a postponed trial date.Under these circumstances, even though Opal's motion came after the close of discovery and after mediation, plaintiff has not shown prejudice.Terhaar v. Hoekwater, 182 Mich.App. 747, 751-752, 452 N.W.2d 905(1990).The trial court did not err in allowing Opal to amend her pleadings.

Similarly, the trial court has discretion to strike all or part of the pleadings of a party who fails to produce documents or other tangible evidence pursuant to a subpoena or an order to attend.MCR 2.506(F)(3).This Court reviews discretionary decisions of the trial court for an abuse of discretion.SeePrice, supra, at p. 466, 502 N.W.2d 337.An appellate court will find an abuse of a trial court's discretion only if an unprejudiced person, considering the facts upon which the trial court made its decision, would conclude that there was no justification for the ruling made.People v. Miller, 198 Mich.App. 494, 495, 499 N.W.2d 373(1993).Here, plaintiff has not shown that the trial court abused its discretion in denying plaintiff's motion to strike.

II

Plaintiff argues that the trial court abused its discretion in denying his motion for a directed verdict with regard to the issue of Opal's parental immunity.We agree.In reviewing a denial of a motion for a directed verdict, this Court examines the evidence in a light most favorable to the nonmoving party to determine whether sufficient evidence was presented to create an issue for the jury.Cleary v. Turning Point, 203 Mich.App. 208, 210, 512 N.W.2d 9(1994).This Court will not disturb the trial court's decision unless there has been a clear abuse of discretion.Id., at p. 211, 512 N.W.2d 9.

Generally, a child may maintain a lawsuit against a parent for injuries suffered as a result of the alleged ordinary negligence of the parent.Plumley v. Klein, 388 Mich. 1, 8, 199 N.W.2d 169(1972);Ashley v. Bronson, 189 Mich.App. 498, 501, 473 N.W.2d 757(1991).However, the doctrine of parental immunity provides two exceptions to this general 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.Plumley, supra, at p. 8, 199 N.W.2d 169;Ashley, supra, at p. 501, 473 N.W.2d 757.Thus, if Opal was exercising reasonable parental authority over plaintiff, then she is immune from liability.Plumley, supra, at p. 8, 199 N.W.2d 169;Ashley, supra, at p. 501, 473 N.W.2d 757.

In determining whether a defendant was exercising reasonable parental authority, the question is not whether the defendant acted negligently, but whether the alleged act reasonably fell within one of the Plumley exceptions.Ashley, supra, at p. 506, 473 N.W.2d 757.The determination whether conduct falls within one of the Plumley exceptions is a question of law for the court.Id., at p.p. 504, 506, 473 N.W.2d 757.For purposes of determining whether parental immunity applies, and because this inquiry requires characterization of the type of activity of the defendant, this Court has assumed the truth of the plaintiff's allegations.Seeid., at p.p. 502, 506-507, 473 N.W.2d 757.

Here, plaintiff testified that Opal was a light sleeper and that she was in the room next to his when Duwayne anally raped him.Plaintiff screamed loudly while he was being raped.Plaintiff also testified that Opal slept just two or three feet away when the three were sleeping in a pickup truck while on a vacation.Plaintiff cried out when Duwayne sodomized him on that occasion as well.

If plaintiff's allegations are to be believed, Opal's alleged failure to act could constitute criminal neglect.Since Opal resided in the same home in which plaintiff resided for a period during which plaintiff was raped, she is a "person responsible for the child's health or welfare."M.C.L. § 722.622(i);M.S.A. § 25.428(2)(i).Opal had a statutory duty to intervene to eliminate any unreasonable risk to plaintiff when she was able to do so and had, or should have had, knowledge of the risk.M.C.L. § 722.622(d)(ii);M.S.A. § 25.248(2)(d)(ii).Child neglect is not a reasonable exercise of parental discretion.As a matter of law, Opal is not entitled to the defense of parental immunity.Ashley, supra, at p. 506, 473 N.W.2d 757.Accordingly, the trial court abused its discretion by denying plaintiff's motion for a directed verdict with regard to Opal's affirmative defense of parental immunity.

III

Once it has been determined that Opal's alleged conduct does not fall under the doctrine of parental immunity, the question remains regarding whether there is a genuine issue of material fact concerning her negligence.Plaintiff argued that the trial court abused its discretion in dismissing plaintiff's cause of action against Opal.Opal counterargued that the trial court should have granted her motion for summary disposition.We agree with plaintiff that his cause of action against Opal should not have been dismissed.This Court reviews a decision to grant or deny a motion for involuntary dismissal under the clearly erroneous standard.Sullivan Industries, Inc. v. Double Seal Glass Co., Inc., 192 Mich.App. 333, 339, 480 N.W.2d 623(1991).The trial court's decision will not be overturned unless the evidence manifestly preponderates against the decision.Id.

To establish a prima facie case of negligence, a plaintiff must introduce evidence sufficient to establish that (1)the defendant owed a duty to the plaintiff, (2)the defendant breached that duty, (3)the defendant's breach was a proximate cause of the plaintiff's injuries, and (4)the plaintiff suffered damages.Berryman v. K Mart Corp., 193 Mich.App. 88, 91-92, 483 N.W.2d 642(1992).The issue whether a defendant owes an actionable legal duty to a plaintiff is a question of law that the court must decide after assessing the competing policy considerations for and against recognizing the asserted duty.Schultz v. Consumers Power Co., 443...