Wright v. Wright

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM; MAHER
• Citation: Wright v. Wright, 351 N.W.2d 868, 134 Mich.App. 800 (Mich. App. 1984)
• Decision Date: 02 August 1984
• Docket Number: Docket No. 71625
• Parties: Patricia WRIGHT, Parent and Natural Guardian of Shirley Michelle Wright, and Roy M. Benaway, Conservator of Shirley Michelle Wright, a minor child, Plaintiffs-Appellants, v. Harry WRIGHT, Defendant-Appellee. 134 Mich.App. 800, 351 N.W.2d 868

Page 868

351 N.W.2d 868

Patricia WRIGHT, Parent and Natural Guardian of Shirley Michelle Wright, and Roy M. Benaway, Conservator of Shirley Michelle Wright, a minor child, Plaintiffs-Appellants, v. Harry WRIGHT, Defendant-Appellee.

Docket No. 71625.

134 Mich.App. 800, 351 N.W.2d 868

Court of Appeals of Michigan.

Submitted Nov. 10, 1983.

Decided April 23, 1984.

Released for Publication Aug. 2, 1984.

[134 MICHAPP 802] Rensberry, Kaufman, Nelson & Petruska, P.C. by Robert K. Kaufman, Gaylord, for plaintiffs-appellants.

Walton, Smith, Phillips & Dixon, P.C. by Geoff G. Smith, Traverse City, for defendant-appellee.

Before ALLEN, P.J., and MAHER and BELL, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right a May 9, 1983, order of the circuit court for Benzie County granting defendant's motion for summary judgment under GCR 1963, 117.2(1). The order was issued pursuant to the trial court's written opinion filed April 29, 1983, in which the court ruled that while a parent can be held liable for negligence toward his own child, no liability attaches where the claim is based on negligent parental supervision. Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972). The trial court ruled:

"Viewing the facts and circumstances of this case, the Court finds that the parents in the case, Defendant Harry Wright and Plaintiff Patricia Wright, may have been guilty of poor parental supervision which resulted in the accident and injuries to their daughter, Shirley Michelle Wright, but that negligent parental supervision is not actionable under the law of the State of Michigan and summary judgment should be, and is hereby granted against Plaintiffs Patricia Wright, as parent and natural guardian of Shirley Michelle [134 MICHAPP 803] Wright, and Roy M. Benaway, Conservator of Shirley Michelle Wright, a minor child."

Patricia Wright, the natural mother of Shirley Michelle Wright, brings this suit in negligence against Harry Wright, father of Shirley, for injuries sustained by Shirley, who on May 20, 1979, at seven years of age, accidentally shot herself with a revolver she found in an automobile owned by Robert P. Jones. On May 20, 1979, Harry Wright took Shirley on a fishing trip with two friends, Robert P. Jones and Ronald Hughes. They all rode to the lake together in a 1979 Chevrolet owned and driven by Jones. While fishing, Shirley fell asleep in the boat. Upon return to shore, Harry Wright put Shirley in the back seat of the Chevrolet. Shirley remained asleep for most of the return trip to the motel. During the trip, Jones showed Wright a .38-caliber revolver and told him it was loaded. He explained he took the gun for protection against poisonous snakes which might be encountered on a fishing trip. Wright looked at the gun, replaced it in its holster and put it back on the front seat.

Upon arrival at the motel the three men and Shirley exited from the car. While the men worked on "buttoning up" the boat, Shirley threw rocks over a nearby bank. Both car doors were closed but not locked. After awhile, Shirley climbed back into the car. Some ten minutes later, Wright walked back to the car and discovered his daughter lying in the back seat with a wound in the cranial area.

On August 31, 1981, Patricia Wright, as parent, and Roy M. Beneway, as conservator of Shirley Wright, filed suit against defendant for negligence. Some time earlier plaintiffs had commenced a suit under the no-fault statute against Jones and Michigan[134 MICHAPP 804] Mutual Insurance Company but summary judgment for those defendants had been entered by the trial court on the ground that damages did not arise out of the ownership, maintenance or use of a motor vehicle. ¹ On December 28, 1981, defendant responded to interrogatories filed by plaintiffs. The question and answer to interrogatory No. 16 is as follows:

"Question

"On May 20, 1979, did you believe that you were promoting proper parental discipline over Shirley Michelle Wright by placing a loaded revolver on the seat of Robert Jones' automobile?

"Answer

"I did not believe and do not believe that returning the handgun of Mr. Jones to the location where I found it had anything to do with the parental discipline of my daughter who, at that time, was riding in the back seat of the Jones automobile."

On March 18, 1982, defendant filed a motion for summary judgment for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), on the ground that the claim was barred by the doctrine of parental immunity. Plaintiffs filed a brief in opposition to the motion and on April 29, 1983, the trial court filed its written opinion granting the motion.

At the outset we quickly reject the claim that defendant's answers to interrogatories propounded to him, particularly defendant's answer to interrogatory No. 16, made it clear that defendant's daughter was not injured as a result of "an exercise of reasonable parental authority". We don't [134 MICHAPP 805] believe the average layman is qualified to answer a question of law. Furthermore, interrogatory No. 16 was framed as a question of "parental discipline" and not as a question of parental authority. There is a vast difference, particularly to the ordinary layman, between authority and discipline. Quite naturally, defendant did not think he was "disciplining" his daughter when they returned to the motel and were busy putting away the boat.

Motions brought under GCR 1963, 117.2(1) are to be decided on the pleadings alone. Cooke Contracting Co. v. Dep't of State Highways # 2, 55 Mich.App. 479, 483, 223 N.W.2d 15 (1974). Interrogatories and depositions are not relevant when the motion is made under 117.2(1) rather than 117.2(3). Todd v. Biglow, 51 Mich.App. 346, 349, 214 N.W.2d 733 (1974). For the foregoing reasons, we decline to find that the father's statements in response to interrogatories were in themselves admissions that his conduct on the afternoon in question was not an exercise of reasonable parental authority.

This brings us to the main issue in this case. Did the father's alleged negligent conduct constitute an exercise of reasonable parental authority over the child as that term was used by the Supreme Court in Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972)? In Plumley the common-law doctrine of parental immunity from suits against the parent for negligence was abrogated, subject to two exceptions:

"A child may maintain a lawsuit against his parents 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) [134 MICHAPP 806] 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." 388 Mich. 1, 8, 199 N.W.2d 169.

Defendant argues that his conduct on the day of the accident was not negligent but even if negligent, that it falls within the first exception noted in Plumley. Defendant also contends the instant case is similar to and controlled by this Court's decision in Paige v. Bing Construction Co., 61 Mich.App. 480, 233 N.W.2d 46 (1975). Plaintiffs argue that what is "reasonable parental authority" is always a jury question and that Paige was wrongly decided. We agree with defendant.

Bearing in mind that motions for summary judgment under GCR 1963, 117.2(1) are to be decided on the pleadings alone, we turn to the pleadings to determine whether defendant Wright's actions fall within the Plumley exception. Paragraphs 1 through 8 of the complaint set forth the facts as summarized earlier in this opinion. Paragraph 9 of the complaint then alleges that the injuries suffered by Shirley were the proximate result of Harry Wright's negligence as follows:

"(i) Harry Wright then and there left her unattended inside the said automobile where, as he well knew, there was a loaded revolver;

"(ii) Harry Wright failed to warn her not to handle the said revolver;

"(iii) Harry Wright failed to remove or unload the said revolver;

"(iv) Harry Wright failed to lock the said revolver into the glove compartment of the said automobile."

No matter how much plaintiffs claim to the contrary, paragraph 9 of the complaint can only be construed as an action for negligent parental supervision. [134 MICHAPP 807] The conduct which the complaint lists as negligent is the father's conduct in overseeing his daughter on the day the accident occurred. Unlike cases falling outside of the parental supervision exception, this case does not involve the direct commission of a wrongful act. It was not the father who loaded the gun or placed the gun on the front seat. It was not the father's gun or his car. As was stated by Judge (now Justice) Cavanagh in Paige, supra:

"According to Plumley, where the alleged negligent act involves 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 exercise of authority over his or her child involves more than discipline. It includes the providing of instruction and education so that a child may be aware of dangers to his or her well being. We find it impossible to separate such general phenomena as authority and supervision. In order to adequately supervise a child, every parent knows that some amount of discipline is inextricably involved. The right to exercise authority over a child certainly includes the responsibility to supervise that child's behavior." 61 Mich.App. 480, 484, 233 N.W.2d 46. (Emphasis supplied.)...