Legal News

Dad's Immunity in Drowning of Child Splits Mich. Court

By Matthew Heller, Editor

The case of a 3-year-old girl who drowned in a lake after her father left her unattended has prompted a Michigan judge to call for the abolition of an immunity that bars minors from suing their parents for negligence.

Judge Elizabeth Gleicher

The Michigan Supreme Court has limited parental immunity to cases in which ?the alleged negligent act involves an exercise of reasonable parental authority over the child? and ?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 v. Klein, 199 N.W.2d 169 (1972).

Applying the Plumley exceptions, a 2-1 majority of the Michigan Court of Appeals last week said a woman could not sue her ex-husband on behalf of their daughter, who drowned in August 2006. Daniel Wilson had left the child, Jordyn Wilson, unsupervised while he went to the restroom.

?[T]here is no question that plaintiff?s claim is based on defendant?s supervision of Jordyn, which  is conduct within a parent?s reasonable exercise of discretion,? the majority opinion concluded, affirming an Oakland County judge who summarily dismissed the case.

But in a powerful dissent, Judge Elizabeth L. Gleicher said Daniel Wilson's conduct ?falls outside the narrow exceptions to parental responsibility adopted in Plumley? and that Michigan ?should fully abrogate the judicially created parental immunity doctrine because it is unfair, unworkable, and logically unsupportable.?

?A child injured by tortious conduct is no less deserving of compensation because the tortfeasor is her father, rather than her uncle or an unrelated stranger,? Gleicher argued. ?I cannot fathom a logical justification for the rule that defendant here owes his daughter a lesser duty of care than he would his niece, had he agreed to supervise her water play along with his daughter?s.?

The Court of Appeals also split in December over a parental negligence case, with the majority finding that the foster parents of a 2-year-old boy were immune from liability for his drowning death in a river adjacent to their home. State Farm Fire & Casualty v Lequia.

As the Michigan Supreme Court has noted, the common-law rule of parental immunity ?had its beginning in the interest of the peace of the family and of society, and is supported by sound public policy.? In recent times, some states have modified the scope of the rule but only Ohio has gone so far as to abolish it completely.

?Abolition of parental immunity as a matter of public policy will provide the innocent victims of tortious conduct the forum they deserve in attempting to redress their claims,? the Ohio Supreme Court said in Kirchner v. Crystal, 474 N.E.2d 275 (1984).

Daniel Wilson's allegedly tortious conduct occurred at a lakeside home where a relative was having a high-school graduation party. After he left Jordyn unattended while he went into the house to use the restroom, she drowned in two to three feet of water.

Wilson did not make Jordyn wear a life preserver even though he knew she could not swim without one. The host of the party had also announced that ?parents should be watching their kids? and life preservers were available.

Jordyn's mother, Nicole Mickel, sued Wilson as the representative of her estate in August 2007, citing a report from an ?aquatic safety and consultation? company which concluded that ?had constant adult supervision by the parent been provided, this submersion fatality would not have occurred.?

The Court of Appeals majority ruled that the case fell under the Plumley exceptions because it was based on negligent supervision which, by definition, ?involve[s] the exercise of parental authority over the child.?

But Judge Gleicher said the Supreme Court had only ?shielded from tort liability a discrete and narrowly drawn list of parental acts: 'the provision of food, clothing, housing, medical and dental services, and other care,'? and by immunizing parents for torts committed ?in the scope of general parental supervision,? the majority ?permits the Plumley exceptions to almost entirely undermine Plumley?s abrogation of intrafamily immunity.?

?Sound public policy? certainly no longer seems to support the immunity rule. As Gleicher points out, ?Whether [Wilson's] discretion reasonably extended to permitting a 3-1/2-year-old child to swim unattended, without a life jacket, constitutes a question that can be answered without implicating a parent?s fundamental decisionmaking authority.?

By Matthew Heller
On Point

Full post as published by On Point News on September 06, 2010 (boomark / email).