Wymer v. Holmes
Decision Date | 30 October 1985 |
Docket Number | Docket No. 76457 |
Parties | Kenneth WYMER, Personal Representative of the Estate of Jennifer Isabel Wymer, Deceased, Plaintiff-Appellant/Cross-Appellee, v. James HOLMES and Coleen Holmes, Defendants-Appellees/Cross-Appellants. |
Court | Court of Appeal of Michigan — District of US |
Skinner & Gustafson by David R. Skinner, Bay City, for plaintiff-appellant/cross-appellee.
Braun, Kendrick, Finkbeiner, Schafer & Murphy by Frank M. Quinn, Bay City, for defendant-appellees/cross-appellants.
Before SHEPHERD, P.J., and VINCENT J. BRENNAN and JOBES, * JJ.
Plaintiff brought this wrongful death action alleging that the decedent, his six-year-old daughter, drowned in defendants' pond. The claim was based on the theories of negligence and attractive nuisance. The trial court entered judgment upon the jury's verdict of no cause of action. Plaintiff appeals as of right. Defendants cross-appeal from a pretrial order denying their motion for summary judgment. We reverse the judgment for defendants and remand for a new trial.
Linda Wymer and her six-year-old daughter Jennifer were visiting the home of Linda's sister and brother-in-law, the defendants, during Memorial Day weekend, 1981. Pam Orlando, a friend of defendants, was also visiting with her three daughters, ages 3, 5 and 7. Jennifer Wymer, defendants' three-year-old daughter and seven-year-old son, and Orlando's three children played in and around defendants' home while the adults were inside. Linda Wymer had examined the pond which defendants had constructed in their backyard, but she was unable to see the bottom of it. She believed it was shallow. There were no dividers or markers indicating the depth of the pond. Linda Wymer and defendants allowed the children to go wading in the pond. The children were told to stay in the shallow section near the bank. Defendant Coleen Holmes told Jennifer Wymer three times to stay near the bank. In addition, the children were told to wade, not to swim. After catching some polliwogs with a bucket, the children left the water and started playing near the home.
Defendants had originally planned on grilling hot dogs in their backyard next to the pond. However,the children were hungry, so defendants decided to cook the hot dogs inside the house and eat them outside at the picnic table next to the pond. The decedent asked for and received permission to go wading in the pond with the other children. Defendant Coleen Holmes was in the kitchen preparing the hot dogs. Defendant James Holmes sat at the kitchen table with his back to the windows overlooking the pond. Linda Wymer sat at the kitchen table, facing the windows overlooking the pond. Approximately five minutes later, Linda Wymer and defendants were taking the hot dogs outside to the picnic table, when defendants' seven-year-old son asked where Jennifer was. Defendants and Linda Wymer searched the house and then looked outside. James Holmes dove into the pond while Linda Wymer and the co-defendant went up the driveway to search for the child. James Holmes found the child in the shallow part of the pond, where the water was only approximately four to five feet deep. He administered artificial respiration while Linda Wymer rubbed the child's extremities. However, the child never regained consciousness. She died the following day.
Plaintiff moved before trial to exclude all mention of Linda Wymer's negligent supervision as a cause of the child's death. The trial court heard the motion and took it under advisement pending introduction of proof. There was substantial testimony regarding the mother's behavior introduced at trial. In closing argument, defense counsel urged that the mother's negligent supervision was the sole cause of the tragedy. Plaintiff's attorney did not object. Over plaintiff's objection, the trial court instructed as follows with respect to the defense theory:
Plaintiff argues, and we agree, that reversal is required because of the injection of the issue of negligent parental supervision into the trial court proceedings. Although there was no objection to defense counsel's remarks in closing argument, we believe that "what occurred may have caused the result or played too large a part and may have denied [plaintiff] a fair trial". Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 103, 330 N.W.2d 638 (1982). Furthermore, plaintiff's counsel had already moved to exclude the testimony, thereby preserving an objection. The effect of defense counsel's argument was exacerbated by the court's instructions, to which plaintiff objected. The issue is properly before us.
That defendants' attorney deliberately raised the issue of the mother's conduct is apparent from the following portion of his argument:
On appeal, defendants do not directly challenge the applicable principle of law, that the studied injection of the subject of parental fault constitutes reversible error. Elbert v. City of Saginaw, 363 Mich. 463, 482, 109 N.W.2d 879 (1961); Bravo v. Chernick, 28 Mich.App. 210, 213, 184 N.W.2d 357 (1970); Lapasinskas v. Quick, 17 Mich.App. 733, 736, 170 N.W.2d 318 (1969). Rather, they argue that even though the mother's negligence was irrelevant to the case on the issue of fault, it remained material to the issue of proximate cause. We reject this hollow distinction. It seems clear to us that the trial court should not have allowed the mother's negligence to enter into this matter in any form. As noted in Elbert, supra, 363 Mich. p. 474, 109 N.W.2d 879.
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